Barr v. Tennessee Assignments of Error, Brief and Argument in Behalf of Plaintiff in Error

    IN T H E
SUPREME COURT OF THE 

STATE OF TENNESSEEM A Y  T E E M , 1925.----- 0----C H A R L E S  B A R R ,Plaintiff in Error,vs.S T A T E  OF T E N N E S S E E ,Defendant in Error.
-— ■— o-—A S S IG N M E N T S  O F E R R O R , B R IE F  AN D  A R G U M E N T  IN  B E H A L F  O F P L A IN T IF F  IN  ERR O R.------o------

g r o v e r  McC o r m i c k ,F L O Y D  C R E A S Y ,Attorneys for Plaintiff in Error.

No. Shelby Criminal Docket.

T he D ally  N ew s Print



I N D E X . PageA SS IG N M E N T S O F  E R R O R , B R IE F  A N D  A R G U M E N TIN  B E H A L F  OF T H E P L A IN T IF F  IN  E R R O R . . . .  3A SS IG N M E N T S OF E R R O R ...................    5B R IE F  A N D  A R G U M E N T  ........................................................................ 9IN  C O N C L U SIO N  ............................................................................................. 144





IN  T H ESUPREME COURT OF TENNESSEEM A Y  TER M , 1925.------o------C H A R L E S  B A R R ,Plaintiff in Error,vs. No. ShelbyCriminal Docket.ST A T E  OF T E N N E S S E E ,Defendant in Error.------o------A S SIG N M E N T S OF E R R O R , B R IE F  AND A R G U M E N T  IN  B E H A L F  OF P L A IN T IF F  IN  ERR O R,----- o—-—M A Y  IT  P L E A S E  T H E  C O U R T :The facts of this case are briefly as follows:On the 25th day of Ju ly , 1924, the grand jury of Shelby County, Tennessee, returned an indictment in two counts against the plaintiff in error (who will be referred to hereafter as defendant) charg­ing him with the offense of murder in the first de­gree upon the body of one W. 0. Spencer on the 23rd day of May, 1923.



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In the first count of said indictment the defend­ant is charged with deliberate premeditated mur­der with malice and aforethought.In the second count of said indictment defend­ant is charged with murder while in the perpetration of a robbery.(Tr. 2-3).The killing is alleged to have occured on High­land Avenue, a public thoroughfare in Shelby Coun­ty, running north and south, a few miles east of the City of Memphis, about three hundred yards south of where said thoroughfare crosses the Nash­ville, Chattanooga & St. Louis Railroad tracks..(Tr. 34 and 36).The defendant was arraigned in Division 1 of the Criminal Court of Shelby County, Tennessee, on the 29th day of Ju ly , 1924. A  plea of not guilty was entered of record and defendant was thereafter, to-wit, on the 14th day of October, 1924, put upon his trial before the Judge of Division 1 of the Criminal Court of said County and a jury.(Tr. 5 and 9).The jury returned a verdict on the 27th day of October, 1924, finding the defendant guilty of mur­der in the first degree, and fixing his punishment at death by electrocution. '' Defendant filed a written motion for a new trial within the time prescribed by law. On the 22nd day of November, 1924, defendant,



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through his counsel of record argued his motion for a new trial which motion was by the Court over­ruled. A  motion in arrest of judgment was then made by defendant upon the same grounds as those appearing in the written motion for a new trial. Said motion was likewise overruled by the Court. Defendant then and there excepted to the action of the Court, in overruling his motion for a new trial, and his motion in arrest of judgment, and prayed an appeal in the nature of a writ of error to this Honorable Court, which appeal was granted and perfected within the time prescribed by law.(Tr. 20 and 22).Defendant is now before this Honorable Court seeking a reversal of the judgment and sentence im­posed against him by the Criminal Court of Shelby County, Tennessee.

A SSIG N M E N T S OF ERR O R.I.The Court erred in admitting as evidence before the jury the alleged statement or confession of de­fendant, over the objection and exception of defend­ant, before the State proved by competent and cred­ible evidence, that said alleged statement or con­fession, was freely and voluntarily made, and in placing on defendant the burden of proving said alleged statement or confession to be involuntary.



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IT.The Court erred in overruling defendant’s mo­tion for a new trial on the sixth ground and reason contained therein which is in the following language:‘ ‘ The Court erred in allowing and admitting as evidence before the jury in this cause con­fessions, both oral and written, alleged to have been made by Charles Barr while in the custody of the police officers of the City of Memphis for the following reasons:1. Because, according to the testimony of the police officers and others testifying in be­half of the State on preliminary examination, upon the questions of admissibility of said statements, both oral and written, said state­ments were not given and made by Charles Barr freely and voluntarily, but were made and induced by threats of violence, promises of re­ward, promise of immunity and while, in a weakened, broken and groggy physical condi­tion, and that said admissions were secured by said police officers by continued questioning of Charles Barr against his will and over his protest and by the breaking of his spirit.That these alleged admissions and confes­sions were not made freely and voluntarily by Charles Barr is further shown by evidence in­troduced on preliminary examination! in his own behalf, as well as the evdience introduced in behalf of the State.2. Because said alleged confessions, both oral and written were secured from the defend­ant, Charles Barr, by the police authorities of



the City of Memphis in violation of his rights inuring to him under the constitution of the State of Tennessee and under the constitution of the United States. He was denied by said police authorities the right of counsel. He was not informed that he had a right to be repre­sented by counsel. He was not informed by said police authorities that he did not have to make a statement unless he voluntarily desired to do so. He was not informed by said police authorities of the crime he was charged with. He was not informed that any statement or confession made by him could and would be used against him in a trial of any offense with which he might be charged.3 That said alleged confession was secured from Charles Barr by the police officers of the City of Memphis by duress and by improper and illegal means in violation of his constitu­tional rights under the constitution of the Unit­ed States and the constitution of the State of Tennessee.” II I .The Court erred in . overruling defendant’s motion for a new trial on the seventh ground and reason contained therein, which is in the following language:“ Defendant herein should be granted a new trial upon the further ground that over the de­fendant’s objection the Court allowed to be introduced before the jury at the hearing of this cause an unidentified ring alleged to have been taken from the finger of a certain Mrs. Ruth Mcllwain Tucker, who was murdered with



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her escort, Mr. Duncan Waller, in Shelby County, Tennessee, near the little town of Ber- clair.This was highly prejudicial to the rights of the defendant in the trial of this cause, where­in he was charged with the murder of W. 0. Spencer and was error on the part of the Court in allowing said incompetent evidence to be presented to the jury trying the defendant.The defendant should be granted a new trial in this cause for the further reason that the Court erred in allowing the introduction of an alleged confession on the part of Charles Barr over the protest and objection of his coun­sel to the effect that he had murdered a certain Mrs. E.uth Mcllwain Tucker and Mr. Duncan Waller in Shleby County, Tennessee, near the village of Berclair in January, 1922, and testi­mony of other witnesses to certain alleged facts relative to the murder of said Mrs. Tucker and Mr. Waller.This evidence was clearly incompetent and highly prejudicial to the rights of this defend­ant because it was evidence given relative to another separate, distinct and substantive offense, or crime and had no connection or bearing on the charge for which Charley Barr, defendant herein, was being tried in this cause. In other words, it was incompetent. A ll of the evidence introduced over the protest and ob­jection of defendant’s counsel relative to the murder of the said Ruth Mcllwain Tucker and Duncan Waller was incompetent in this case and the Court erred in allowing its introduct­ion in this cause, and its presentation to the jury trying Charley Barr in this cause.



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All evidence introduced by the State with . reference to the murder of Mrs. Tucker and Duncan Waller was in the nature of alleged confessions made by the defendant, Charles Barr, to the police authorities of the City of Memphis. These statements and alleged con­fessions were not made by Charles Barr volun­tarily but were induced and secured from him at the same time and in the same manner that the police authorities secured from him the al­leged confession of the murder of W. 0. Spen­cer. The said testimony was incompetent for this additional reason.”

I V .The Court erred in overruling defendant’s mo­tion for a new trial, on the ground that the evidence introduced in this cause, preponderates in favor of the innocence of the accused and against his guilt, and that the verdict of the jury is not supported by competent and credible evidence.
B R IE F  AND A R G U M E N T .The first two assignments of error go to the ad­missibility in evidence before the jury of defend­ant’s statement or confession and for convenience, will be treated as one general assignment of error.Before going fully into the facts, and at the out­set, we desire to call the attention of the Court to just what transpired on the part of the State and



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what testimony it introduced to show that this con­fession was given freely and voluntarily by Char­ley Barr. After the Court reads this testimony which will be quoted below, it will at once be driven to the opinion that the Court below promptly, and without allowing discussion, forced upon the defend­ant the burden of showing his statement or confes­sion to have been involuntarily made to the officers. This was clearly an error on the part of the Court, as was held in the Williamson and Platt case.The following is what transpired :

R ECO R D  P A C E  131-134.Q. “ Now, When Barr was brougt to the police station you say that was on the 17th, Thursday!A . Yes sir.Q. In the neighborhood of between 1 and 2 o ’clock in the afternoon?A . Yes sir.Q. I  will ask you if you had a conversation with him at that time?A . I  did.Q. A t that time did he make any statement to you with reference to either the pistol or the watch?A . He made a statement with reference to both.



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Q. Who was present at the conversation?A. I would not be positive; possibly the arresting officers were all in there, but I  don’t remember—I didn’t pay that much attention to it. He was in the room. There was some of them in there; I  would not be positive.Q. Was the wife of Charles Barr, Luada Barr present?A . I think she vTas General; I  would not say positively about that; I  know she was brought in in the meantime.Q. What statement, if any, did he make to you with reference to the pistol and watch?MB. M cCO R M ICK : I object to that, may it plase the Court. Object to any statement made to Chief of Detectives until it is shown here nowr just the circumstances under which the statement was made, or any other state­ment.T H E  C O U R T : Any statement he freely and voluntarily made.Q. This was Thursday afternoon between 1 and 2 o ’clock. I  will ask you if the statement he made to you with reference to the watch or the pistol, was free and voluntarily?A . It was.Q. I  will ask you if any promise of reward was made to him of any offer of immunity of any kind?A . There wras not.



Q. Was he threatened or abused in any way?A . He was not.Q. Ju st state what he said to you Inspector with reference to the watch and pistol?MR. M cC O R M IC K : May it please the Court, I  object here. It has been stated all along in this lawsuit—T H E  CO U R T : Ju st a moment, Mr. Mc­Cormick. Do you want to hold a preliminary examination in the presence of the jury?MR. M cCO R M ICK : I want to make this statement—T H E  CO U R T : You have a right, Mr. Mc­Cormick to—MR. M cCO R M ICK : I  make objection upon this ground. I  want to state my ground for making my objection now and it will not be prejudicial to the rights of anybody. It might be necessary for the jury to go out—T H E  C O U R T : I  will send them out.Thereupon the jury was excused, and the following proceedings were had in the absence of the jury:MR. M cCO R M ICK : My objection—my grounds of the objection is this: That during this whole proceeding, and during the examina­tion of the veniremen and the jury, it has been



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stated here a written confession or written statement would he introduced. And it is per­fectly obvious that a written statement on the part of this defendant is in existence and that the statement bearing upon this issue of Char­ley B arr’s connection with this matter, is in writing and it has been so admitted and I  ob­ject to any oral statement alleged to have been made by Charley Barr, this defendant, to any police officer, except this written confession.T H E  CO U R T: Overruled.MR. M cCO R M ICK : Note an exception.T H E  C O U R T : I f  you desire to hold a pre­liminary examination as to whether it was freely and voluntarily made without hope of reward, you may do so by him or any other wit­ness you may wish or see fit.MR. C R E A S Y : May it please the Court, I want to add, as a further ground to the intro­duction at this time of any statement alleged to have been made by the defendant, that the state has not shown by any evidence that it was freely and voluntarily made.T H E  C O U R T : He asked the Inspector and he said it was.MR. C R E A S Y : It is not evidence, but sim­ply a conclusion of the inspector, that it was freely and voluntarily obtained. I  want to ask that the circumstances surrounding the alleged taking of this confession, be made known to the Court so that the Court may be the judge



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as to whether or not the confession was freely and voluntarily made.GEN . S H E A : That is the question I  asked and he objected to it.MR. M cC O R M IC K : We might as well go through the whole routine now; and that ap­plies to the confession that will evidently be produced later on. Might as well go through the whole routine right now.GEN . M cL A IN : The statement was made at different times.T H E  CO U R T : Go through the whole ex­amination and see whether it was freely made.MR. M cC O R M IC K : I think we can do that and get through with it at one time.T H E  C O U R T : Go ahead you gentlemen.G E N . S H E A : The statement made the first day and the second day—they are separ­ate transactions.T H E  CO U R T : L et’s ’ go into all of them and save time, right now.MR. M cC O R M IC K : I  think so,—oral, writ­ten and everything else.T H E  C O U R T : Go ahead with your exam­ination.G E N . S H E A : He said it was freely and voluntarily made.



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T H E  C O U R T : Now is the time to see whether it was freely and voluntarily made.GEN . S H E A : We pass him to you.T H E  C O U R T : It is up to you gentlemen to go through with the examination as you see fit. It is now time for lunch and we will adjourn until 2 P. M .”Only one other witness was introduced in chief by the State to show that this was a voluntary state­ment. This witness was Judge Clifford Davis, pre­siding Judge of the City'Court at Memphis.A  a matter of fact, Judge Davis knew nothing about how this confession was obtained or the means used, or the promises or threats made to secure it. It is admitted and testified to by all witnesses that Charley Earr made his oral confession about 8 o ’clock on Saturday night, Ju ly  19th. The writing up of the confessions and the securing of Charley B arr’s signature are of no significance, and was merely routine.Judge Davis did not get to the police station on this night until after 10 o ’clock, and therefore, he is out of this matter so far as knowledge of the man­ner in which this confession was secured is . con­cerned.We quote the testimony of Judge Davis, Record page 184, as follows:



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“ Q. What time on Saturday night did you get down to the Police Station!A. Oh, I think—if I recall it, I left you on the corner of Monroe and Main, it was a little after 10. I came on ahead of you to the Police Station—you came on up to the police station— yes, I  recall I  came ahead of you.”So Judge Davis knows nothing of the matter and we dismiss him.These are the only two witnesses introduced by the State and by whom it is contended the State car­ried the burden of showing these confessions to have been voluntarily made by Charley Barr.As a matter of fact there is no evidence in this record that this confession was voluntarily made.The Court, held in the Williamson and Flatt case, decided hM opinion by his Honor, JusticeMcKinney, on page 10 of said opinion, as follows:“ Upon an analysis of the State’s evidence, we find no testimony tending to show that this confession was freely and voluntarily made, and the burden was upon the State to show this. The only evidence upon this question are the statements of the officers, Eagan and Patton, that the confession was made voluntarily, which is a mere conclusion, as they testified to no facts and circumstances as a basis for such con­clusion.We submit, therefore, that the State introduced

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no testimony to show that this confession was a vol­untary one on the part of Charley Barr and the Court committed an egregious and a reversible er­ror in placing the burden upon the defendant, Charley Barr, to show that this confession was not forced from him.Charley Barr testified that Chief Griffin struck him, beat him, and abused him, and also testified that a police officer by the name of Lee Quianthy was the official who constantly abused him and beat him worse than any other officer who ever had him in charge.Lee Quianthy did not even take the stand on the question as to whether or not this confession was a voluntary one, and he was not called on to deny that he struck, abused, beat and mistreated Charley Barr, as he testified that he did.This brings ns to a discussion of all the facts, so that the Court may determine whether said alleged confession or statement was properly admitted as evidence before the jury.It is conclusively shown by the evidence and undisputed by the defendant that on the 23rd day of May, 1923, at about 11:3Q P. M., W. (). Spencer was shot and killed on Highland Avenue in Shelby County, Tennessee.(Tr. 29).The corpus delecti was therefore conclusively



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proven, but by evidence that established nothing as to who the guilty person or persons were. The State relied solely upon the alleged confession or statement of defendant, and circumstantial evidence, to fix guilt upon him.It is the insistence of the State of Tennessee that a short time prior to the arrest of defendant, Lou Ada Barr, defendant’s estranged wife, was arrest­ed and carried to the Police Station of the City of Memphis and questioned regarding a certain wrist watch which she had pawned at a pawn shop in the City of Memphis; that Lou Ada Barr made a writ ten statement in which she said the watch was given to her by defendant. Lou Ada Barr was not intro­duced as a witness in this case.(Tr. 129-130).Defendant was then arrested upon this evidence or suspicion and brought to the Police Station of the City of Memphis on Ju ly  17, 1924, at about 1 o ’clock P. M. (Tr. 188)It was at that time that Inspector W. T. Griffin, Chief of Detectives of the Memphis Police Depart­ment, and his men started their work of securing from defendant a free, voluntary and deliberate statement or confession, which work lasted fifty- nine (59) hours. At the end of said time and in the dead of night defendant signed the statement or confession introduced in evidence before the Jury.Tr. 357-398)



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What took place in the office of Inspector Grifffin  during that ordeal is thus described by defendant on direct examination in the absence of the jury.Beginning on page 188 of the transcript:“ Q. Who arrested you, Charley, if you know ?.A . Four detectives, at least three, I do not remember their names.Q. Where did they take you IfA . To the Police Station.Q. What part of the Police Station did they take you!A . Up in the front part, brought me in the back and come up in the front.Q. In whose office did you go!A . Chief Griffin.Q. When Chief Griffin came, what did he say to you?A . He asked me had I ever given my wife a wrist watch.Q. What did you tell him?A . Told him yes sir.Q. What else did he ask you? ?A . Well, he asked me that—he stayed on that one thing; asked where did I  get it a t ; and lots of other things about it.



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Q. Had he at this time told you that you were being brought to the Police Station in connection with the murder of a man named Obe Spencer?A . No, sir.Q. What did you tell him about the wrist watch ?A . Told him I had gotten it from a man named Manuel Williams, a policy writer. I  had seen him several times; I didn’t know him per­sonally ; 1 didn’t know where he lived at.Q. What did he say when you told him you had gotten the watch from Manuel Williams!A . Said that he would take that under con­sideration and find Manuel W illiamsQ. Did he find Manuel Williams!A. No, sir.Q. What else did you tell him, if anything, about other articles you had gotten from Manuel Williams?A . He began to state so much, I began to tell him what I  had got from him and when.Q. Did he come back and say anything more to you about Manuel Williams? ?A . He said that he could not find a negro by that name and that I  was not telling him the truth.Q. How did Inspector Griffin treat you when he said you were not telling the truth.



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A . Well, he didn’t do anything to me him­self, but his men struck me over the head and said that they were going to have the truth out of me.Q. Did Chief Griffin ever hit you, Charley!A. Yes, sir.Q. How many times?A . I could not recall how many times he hit me; he hit me quite a number of times, but not then.Q. Did Chief Griffin strike you before you came over here to the Court House that day in what we call the habeas corpus trial before Judge Guthrie?A . Yes, sir.Q. You say his men struck you. Can you tell the Court—can you describe the men that struck you?A . Well, I  know one of them; I don’t know his name, but when I see him; he is very inter­ested in it, and he is—Q. Very what?A . Very interested in it; and was always with me at the time; kind of a red nose man; and another big one had on a light suit, larger than he is; I  don’t know the name of that one; I  did know their names but I  done forgotten them.Q. What did they strike you with?



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A . Well, they got a little club looking thing, I  guess so long—a little holder strap on it; that is what he struck me with at fir.it- Then the other man had something like a hose pipe, look­ed like a rubber hose.Q. What did they say to you when striking you.A . Ju st said I  was telling a lie, and that they were going to have the truth out of me; that I should not sit up in the office and tell a lie like that.Q. What lie did they say you told? ?A . They said I said I  got that from a strange negro; and they knew where I  gotten it from.Q. Where did they say you had gotten it?A . They said then my wife said I got it from Mr. Bailer.Q. What did you say to that? ?A . As they began to strike me I  just went on and said like they said, yes.Q. In other words, when they struck you those number of times, and said your wife said you get the watch from Mr. Bailer you went on and said what they wanted you to say?A . Yes, sir; I  thought that was best to tell that to save my head, and I  went on with them.Q. When did they first accuse you—tell you in the Police Station you were being charged with having killed Mr. Obe Spencer?



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A . Well, as near as I  can get at it that was Friday morning.Q. Friday morning?A . Yes, sir.Q. What was the occasion—who told you?A . Chief Griffin told me.Q. You were arrested Thursday afternoon?A . Yes, sir.Q. And it was On Friday morning, and what did he tell you?A . Well, he said that—told me he knowed where I  got the watch; he said a woman was killed and the watch was—a man was killed and the watch was snatched off the woman’s arm and I  was the man that did it.Q. Had you ever heard of Mr. Obe Spencer in your life before that time?A . No sir.Q. How long did they talk to you on the first afternoon that you were in the Police Sta­tion—taken down there. How long did they talk to you, if you know?A . They talked to me until night.Q. Talked to you until night?A . Yes, sir.Q. Then where did they take you?



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A . Well, they had asked me who was the negro Charley Hays—got him mixed up witli me somehow or other I  think—they asked me who he was. I  told them I didn’t know. They struck me then for saying that, because they said I  did know. I told them I  didn’t know.Q. Which one of them struck you!A . Either M r .----- one of the two I  told youabout.Q. The big man with the red nose?A . Yes, sir; the man with the light suit— they were the ones there with me that evening. Chief Griffin was in and out.Q. What was there about this man Hayes?A. They said I knowed him; I  said I  did not; and they struck me and they said he used to work for Mr. Dick—W. H. Dick. I  used to work for Mr. Dick there, and they found out through him that he was name Charley. Some­how or other they thought that I  and him was friends and I  did know him. I  didn’t know him by that name. I  knew him by the name of Eska May.Q. Charley Hays and Eska May is the same negro; is that right?A. Yes, sir.Q. How was his name brought up; who brought it up?A . They brought it u p ; asked me if I  know Charley Hays.



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Q. Did you see Charley Hays at any time— did they bring him down there?A . Yes, sir; they brought him down there that night.Q. What did they have to say when they brought him in?A. They said the negro said he didn’t know anything about it.Q. Well, had yon told them that you had bought this stuff from Charley Hays or Eska May—or whatever you call him?A . No, sir; not at that time.Q. How long did they talk to you on Thurs­day night?A. Well, they talked to me until----- theytalked to me and whipped me until they got me to say that I  got the stuff from Charley Hays.Q. You did tell them you got the stuff from Charley Hays?A . Yes, sir; after they whipped me and beat me.Q. And then how long did they talk to you that night?A . I  would say until about 7 o ’clock; it was getting dark.Q. That was in the afternoon; the morning or night from 7 o ’ ’clock on?A . Before they started to talk they went



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out in an automobile out somewhere and hunt­ed Charley Hays.Q. Did they talk to you ?A . Yes, sir.Q. Take you along? ?A . Yes, sir.Q. That was Thursday night?A . Thursday night.Q. Where did you go?A . Went out on Linden Avenue; some place that he worked out there—over there back of Bender’s Garage.Q. What did they say to you while driving around ?A . They were saying we are going to find the negro and get the truth out of you or him one or kill both of you.Q. Did you come back to the Police Station then?A . Yes, sir; came back to the Police Sta­tion.Q. Did they talk to you any more during Thursday night?A . Yes, sir; talked to me clean until they got him.Q. How much sleep did you get on Thurs­day night?



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A . Well, I  don’t know as I  got any. They talked to me all the time that night until after they got him, and when they got him they put me in. I  would say I  was in about an hour or two hours may be, I don’t know exactly; but I didn’t go to sleep at that time. Well, after they got there with him then they brought me back out and brought me before him, and asked me did I  get the watch from him; and I told them yes sir.Q. Why did you tell them yes sir?A . Because I  was afraid they were going to beat me some more.Q. Now, on Friday, did they talk to you on Friday?A . Yes, sir; from the time they left me— from the time I  told them I gotten it from him, they talked to me from then on until the next morning.Q. On Friday afternoon or night, where did you go or where did they take you ?A . Well, we went out on Highland Avenue.Q. Out on Highland Avenue?A . Yes, sir.Q. What did they tell you going out High­land Avenue; where did they tell you they were taking you to?A . Told me they were taking me out where the man was killed.Q. For what purpose?



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A . I f  I  didn’t own up to it and say. I did it that they were going to tie me behind an auto­mobile and let those people kill me. Said the newspaper reporters had gotten it out that they had the right man and the people were out there waiting, and that when I was going out there they were taking me out there to kill me.Q. What did they say to you?A . They said, well just say you did that and we will not take you out there.Q. What did you tell them then?A . I  didn’t tell them I did it; I told them I -would talk to them when I  had gotten back.Q. What, if anything, did they put on your neck ?A . They had a collar; said that it was the dead man’s collar and put it around my neck and asked me didn’t I  feel the man choking me; I  told them no sir, I  didn’t feel anything.Q. Then what did they say?A . They said you are the man, at least the newspaper reporters got it out you are the man if you are not. They said if you tell us you did this we will protect you. I f  you don’t tell us, those people out there are going to kill you.Q. Did you have the collar around your neck at the time?A . Yes, sir.Q. What did you tell them then?



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A . I just stuck out to it I  didn’t do it; told them I didn’t do it.Q. What did they promise you, if anything, if you said you did do it?A . They promised me that if I would tell them I  did it they would come into court with me and enter a plea—it was pointed out to me where they had had men worse than I, and asked did I  remember and I  said yes, and they said they would come in with me to the court and I  would have a chance to save my life, if I  did not I  didn’t have a chance to save my life.Q. Did you confess?A . No, sir; not then.Q. I mean when you got back to the Police Station ?A . Yes, sir.Q. You told them out on Highland Avenue if they would not take you out and let them kill you, but bring you back to the Police Station that you would tell them that you did it?A . Yes, sir.Q. And that you would tell them anything they wanted you to tell them?A . Yes, sir.Q. And you did that did you?A . Yes, sir.



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Q. That was Friday night about 8 o ’clock!A . I  would say 8 or 9 o ’clock—somewhere along there.Q. About 8 or 9 o ’clock?A . Yes, sir.Q. And that is when you told them that you did it?A . Yes, sir.Q. Now then, these written papers here, did you read those papers over before you signed them?A . No, sir.Q. Who gave them to you?A . Well, they were not give to me, they were laying on the table.Q. What was said?A . A  black sheet of paper over them, and I  was told by the Chief for me to sign it, just to sign my name to them; that it was just a statement from me—‘your wife has signed and Eska May has signed, and everybody else has signed, why don’t you want to sign?”  That is all kept from Friday night until Saturday night—the signing, that was all; I  just would not sign my name to them.Q. You would not sign your name to the papers?A . No, sir.



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Q. During the entire time you were over there at the Police Station, Charley, how much sleep did you get or were you allowed to get?A . Well, I  slept Friday night from about say 6 o ’clock until the time they taken me out on Highland; they said I slept an hour; it, seems like about 20 minutes. Saturday night and Sunday morning they said at, 1 :30.Q. You mean that is all the sleep you got?A . Yes, sir.Q. During the entire time?A . Yes, sir; and they brought me up there Thursday.Q. Yes.A . They put me in Thursday night; I  don’t know how long they were talking to Eska May. Well, I  didn’t go to sleep then. Well, they got me out at that time and kept me from then un­til Saturday and didn’t allow me to go back in the prison from Thursday night until Saturday night.Q. _ Do you mean they kept you in Chief G riffin ’s office from Thursday night on until Saturday at noon?A . Yes, sir.Q. With the exception of two hours on Friday night you slept.A . Well, I  went out on Highland Friday night, too; except that and Friday in the day; we went over on Madison, 62 Madison.



32
Q. Did you or not sleep or try to sleep in the chair you were sitting in in Chief G riffin ’s office?A . Yes, sir! I  tried to at times, and every time I  would go to sleep would be somebody woke me up some way or other.Q. Did they or not keep a detective in your presence from the time you were arrested un­til you made this confession?A . Yes, sir.Q. They struck you when you tried to sleep ?A . Yes, sir.Q. How?A . Say for instance, just like I  would be leaning over like that; they would take their fist and strike me and raise me up like that; may be a kind of punch of some kind or hit on the head.Q. Did they give you any water?A . Well, Saturday morning they gave me water.Q. Saturday morning?A . Yes, sir.Q. Did they give you anything to eat?A . No, sir.Q. They did not?A . No, sir.



33
Q. Was it Saturday when they gave you water to drink or after that day?A . Yes, sir.Q. When did they give you food on Sat­urday ?A . Didn’t give me any until Saturday night, after I had signed my name.Q. Is that when you say Mr. Quianthy got you the eggs and ham?A . Yes, sir.Q. Was that the first food you had had?A . The first food I  had had since Thursday morning when I  had eaten my breakfast.Q. What, if anything, did they tell you about allowing you to stay with your wife if you would confess and sign the papers?A . Well, they said they would allow me a good opportunity—better than ever allowed anybody else that had been in the Police Sta­tion—they would allow me to go up and stay with my wife and give me a good supper.A . Yes, sir; if I would sign those papers.A . Yes, sir; if I  would hsign those papers.MR. M cCO R M ICK : Take the witness.”Defendant further testified on cross examination in the absence of the jury, with reference to what happened in the office of Inspector Griffin. Be­ginning on page 212 of the transcript.



Q. You can count pretty well, can’t you?A . Yes, sir.Q. How many times did they hit you with that black jack and that hose pipe?A . I could not tell you to save my life ; they hit me a many a time with it.Q. Hit you many a time with it?A . Yes, sir. I  could not count them to save my life.Q. Where did they hit you?A . Over the head, the shoulders, my arm here was sore from hitting me over the should­ers.Q. Would they hit you over the head, too?A . You put your hand up—Q. Ju st answer what part of the head they hit you.A . One of the places I  could tell about them hitting, because one of the places having a knot raised on it on the back of the head. My head was sore all over.Q. They hit you all over the head then?A . Yes, sir.Q They hit you so many times that you could not give us an estimate of it, is that correct ?A . No, sir, not to save my life.



35
Q. Y ou understand what I mean when I  say estimate?A . Yes, sir.Q. You understand it?A . Yes, sir.Q. Charley, how many people were in the room when you made this last statement, this Saturday night?A . I  could not tell you.Q. Was there a whole lot of people or not?A . I  don’t know, sir; I  was so sleepy and hungry and tired I  really don’t know.Q. Do you remember Inspector Griffin ask­ing you a question?A. The questions ?Q. Y e s; this gentleman right here, asking you questions that night?A . What you mean by questions—he asked me one thousand questions.T H E  C O U R T : I  want to ask a question. Can you read?A . Yes, sir.T H E  C O U R T : Why did you sign up a state­ment? Did you read it?A . No, sir.T H E  C O U R T : Did you know what was in ' them?



36
A . No, sir; I  didn’t read any more, they said it was a statement I  had made.T H E  C O U R T : What statement did you make ?A . I  told them I  did.T H E  CO U R T : Did what?A . K ill people.T H E  CO U R T : You knew what you were signing then?A . No, sir; I didn’t know what I  was sign­ing of that sheet of paper over it. They said everything I said while I  was up there; the sheet of paper come down to here—sheet of blank paper, right down to there, and said sign your name. That is the way it was.T H E  C O U R T : That is all.MR. M cCO R M ICK : Come down, Charley.G-EN. S H E A : Let him get back there a min­ute.Q. Charley, this was about Ju ly  17, 18 and 19, was it not when you were at the station house there?A . Yes, sir.Q. Was the weather hot?A . Yes, sir; very hot.Q. It was very hot?



37
A . Yes, sir.Q- You were taken to Inspector G riffin ’s office; that is where you say you were ques­tioned. That office is right along Adams Street is it not on the Adams Street entrance!A . Yes, sir; the first office.Q. It is on Adams Street; the entrance— front windows and you can look out on Adams Street?A . Yes, sir.Q. And there are windows on the other side where you can look out on the fire station is there not?A . Yes, sir.Q. The windows were open?A . Yes, sir.Q. And that is where you were beaten and struck?A . Yes, sir; right in that office.Q. Did you see all those firemen sitting out there?A . Well, when I  was up there at night, when anything like that would arise I  want to tell you they would pull the shades down.Q. Pull the shades down?A . Yes, sir.Q. What did they do in the day time?



38
A . Kept the door locked and kept every­body out.Defendant further testified before the jury in ref­erence to his arrest as follows:Beginning on page 580 of the transcript:“ Q. Charley, when were you arrested?A. Ju ly  17 th, 1924.Q. What day of the week was that?A . Thursday.Q. What time of day were you arrested, and where?A. About some time between 12 o ’clock out at Mrs. Van Fossan’s house.Q. Who arrested you?A . Three detectives; I  don’t just remember their names.Q. What did they say to you when they walked up to you?A . Well, I  drove under the driveway and I  noticed a little Ford car sitting out on the Parkway; I  didn’t know the man in it. I came under the driveway as I  usually do, and drove on into the garage and taken my bundles out of the car in one hand and there was a piece of paper laying in the driveway and I  picked that up because I  knew Mrs. Van Fossan would come and see it; and I  always have to do things like that before she told me. As I  picked the



39
paper up, there was some hedge comes up be­side the driveway; and I  stepped outside the hedge to throw the paper on a pile of trash out there where we burn it, and as I came out of the driveway I  saw them coming in, and I didn’t pay any attention; just thought they were insurance men or something; I  didn’t know what their business was. So I  went out to throw this paper, and by the time I had gotten back to the hedge,—it may be possible I  had gotten back to the hedge—they all three was running up and pulled out their pistols on me and said: ‘ Don’t run and throw up your hands.’ And I  had the bundle in one hand, and threw up the one hand, and I  told them I  wasn’t go­ing to run. So they brought me on back, I asked if I  could put my bundle back and they said yes.Q. What did they say they wanted with you ?A . One said, I  am an officer and I  want you. I  asked him what did he want. He said, ‘ The Chief wanted to talk with me.’ I  asked him if he knowed what the Chief wanted. He said no, he did not. Well, by that time I  guess the Ford drove in the driveway and they put me in it.Q. Did they go up to your room!A . No, sir; not then.Q. Not then!A . No, sir.Q. Did you go up to your room?



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A . No, sir.Q. Where did yon go from there!A . Came on to the police station.Q. Do you know whether or not they got a pistol out of your room or not!A . Yes, they did.Q. When, if you know?A. Must have gotten it before I  got there, because the room was open, and the cook was there and I  understand that they had asked her a lot of questions concerning me; but I  didn’t- know it at that time.Q. But they didn’t go up to your room and take you up to your room at that time?A . No, sir.Q. When you got to the Police Station did they have this pistol with them?A . Yes, sir; they had it but I  didn’t see it.Q. Well, what did they say to you coming to town from Mr. Van Fossan’s home to the Police Station?A . They asked me if I  was ever arrested before and where had I  lived and who did I keep company with or run with, and had I  ever owned an automobile and why did I  leave my wife and why was I  separated from her, and lots of other questions that they asked me.Q. Did they tell you that they were taking



41
you to the Police Station and charge y o u  with the murder of Mr. Spencer or anybody else!A. No, sir; I  didn’t know I  was charged with murder.Q. When you got to the Police Station where were you taken?A. To Chief Griffin ’s office.”Defendant further testified on direct examination before the jury as follows:Beginning on page 586 of the transcript:“ Q. When did they show you, if at all— let’s see the watch— (inspection of watch by counsel for defendant) this particular watch?A. Friday morning.(Inspection of watch by the defendant.)Q. You say you did give your wife a wrist watch ?A . Yes, sir.Q. What else did you give your wife at the same time you gave her a watch?A . A  ring._ Q- What else did you give her at the same time you gave her the wrist watch and ring, if anything?A . I  didn’t give her anything at that par­ticular time.Q. When was that?



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A. Way back in March, 1923.Q. What kind of watch did you give your wife ?A . A t the time I  gave it to her, I  and her noticed it was a 15-jewel watch; it had that name written in the back of it.Q. A  Swiss watch?A. Yes, sir.Q. Did yon give your wife this watch at all?A. No, sir.Q. Did they show you that watch at the time they swore out the warrant against you for killing Mr. Spencer?A . No, sir; they had not showed it to me until later.Q. Did or not they arrest your wife first?A . Yes, sir; they had.Q. Did you know it when they came out to arrest you?A . No, sir.Q. A t that time did you know that they had possession of this particular watch?A . No, sir.(Inspection of watch by the Court.)Q. Now, then, Charley, where did you get the pistol?



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A. I  bought the pistol from the same fellow.Q. And who was that?A . Manuel Williams.Q. And where!A . Out at Mr. Crump’s house.Q. Where did you buy the watch and ring!A . Bought them out there, and when I bought them it was in the winter time; and he come up in the servant’s room; it was cold that day, and I  happened to—Q. When did you buy the pistol?A. Bought the pistol Ju ly , 1923.Q. Ju ly , 1923?A . Yes, sir.Q. Tell the jury what transaction—when you bought the pistol.A . Well, I  was out there that dav working, and he come along and said—TH E COURT: Who came along?A . Manuel Williams. I  know him because I  had had some dealings with him. He said that he had a pretty good bargain for me if I  could raise up some money. I  asked him what it was. He showed me that little pistol. I asked him what he wanted for it. He would not state what he would take for it. I  told him I  didn’t have much money right then and showed



44
what I  did have; and lie tried to get me to let him take that; but I  said no, to tell what he wanted for it and he would not tel! me, and he asked me if he would come back Saturday would I  have it for him. I  said if he would tell what he would take for it I  would. And finally hummed and hawed around until he said $12.00. I  said: you tell me you want $12.00 for that lit­tle old pistol? I  never did buy a pistol and I didn’t know the value of it before. He said yes, and I  will trade you in a lot more things. I  said all right. Saturday he came back with the pistol and several other things, and I bought it.Q. What were those several other things?A. Sold me a rug, two rings; and I  think it was a hair brush and maybe something else; I don’t just remember the things—what they were now.Q, Did he come back on that Saturday night ?A. Yes, sir, he did.Q. And how much did you pay him for this stuff?A . $12.00.Q. And when was that?A . That was about the second Saturday in Ju ly ; I  know it was about the 4th of July.Q. 1923?A . Yes, sir.



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Q. Did von tell the police officers that you had gotten all of this stuff from this man?A . Yes, sir; told them just exactly how I obtained it and everything the best I  could.Q. Wliat was the occasion of George Tons- tall—was he brought up to the police station?A. Well, on Friday morning they asked me -—had been asking me continually on this ques­tion, why was I  and mv wife separated, and I tried as best I  could to tell them; and she had told them some things. And so I  just told them, well, one reason I  left Lou Ada was because when Mr. Crump and them went away in the summer that I  tried to get her to live out on their place with me and she would not do it; and the next week she goes out and starts to staying with George; and of course in that way she caused the separation. They wanted to know who George was and I  told them who he was; and they goes out there and gets him and brings him up there and asked him what he knows about it.Q. Now, on Thursday how long did they talk to you about this—had they told you yet you were charged with the murder of anybody?A . On Thursday night?Q. Yes.A . No, sir.Q. When did they first tell you you were charged with murder?A . Friday morning.



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Q. How long did they talk to you on Friday night?A. Well, I  don’t remember. I  know we went out on this automobile ride. They talked to me when we got back but I don’t know just how was that they talked to me Friday morning; long. All I  remember about Thursday night when daylight came we were in Chief Griffin ’s office still talking; any time I  lost that night I  don’t remember; I  don’t know.Q. Did you get any sleep on Thursday night?A . No, sir; I know I did not.Q. Did they strike you any Thursday morn­ing or misuse you in any way?A. They were cursing me pretty near every­thing they would ask me, would say I  was tell­ing a lie about it and curse me; but I  don’t think they hit me any Thursday night; I  know that they did Friday morning.Q. What was the circumstances under which they struck you Friday morning?A . Well, when they told me that I  was charged with shooting a young man and shoot­ing a young lady I told them I  didn’t do it and I  didn’t know nothing concerning it. And they told me, well, they had a pistol and wanted to know whether I  had seen the pistol before that time or not—that they had the pistol and watch, that the watch come off the young lady’s arm and the pistol was the same caliber that the people were killed with, and if I  didn’t do



47
it, having- these things in my possession, I had to tell where I  had gotten them from or else they would come to Court and send me to the electric chair without me opening my mouth, if 1 come up and say I  gotten it from a strange negro. That was all I  could tell, and so they questioned me around and for some cause I  was struck that morning by Chief Griffin and an­other man, Mr. Thompson, T think.Q. Were they at that time trying to get you to confess to the fact that you killed Mr. Obe Spencer ?A . Had been trying all night; and I  guess I  would have did it if I  had knowed what they wanted me to have said. I  didn’t then know what they had me for.Q. Now—8 o’clock at daylight Friday morning, they were talking to you!A . Yes, sir.Q. Not for any time did they take you back to the cell?A . On Friday?Q. Friday morning?A . I  don’t remember going back Friday morning.Q. You don’t remember going back Friday morning?A. I  know I  was there at daylight, and was there when Chief Griffin come, right in the same place.



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Q. ’Did they talk to yon all the morning, or what part of the morning did they talk to you?A. Yes, sir; they talked to me all Friday morning.Q. Had they told you then that thej  ̂ had sworn out a warrant or did they just inform you of the fact you had killed Mr. Obe Spen­cer?A . No, sir: didn’t tell me anything about a warrant and I  didn’t know anything about it.Q. You didn’t know anything about that?A. No, sir.Q. What, if anything, did they say to you about confessing, coming through and telling you killed this man?A. Well, they said if you didn’t do it just say you did and we will protect you. They said we, as officers, we will protect you. Showed me some pictures upon the wall of fellows that had did worse things than I  did they said, and said they come over and got life and have a chance to get out. And they cautioned me, where there was life there was hope. That was one of their particular words, telling me that they knew the Attorney General over here, and I  think they said the Judge, and several others, and said if they come up with a plea for me they could not send me to the electric chair. All I  had to do was to come clean and tell them about it, and they would help me out.Q. Were you taken down any time during



49
that day—that was Friday; Friday afternoon were you taken anywhere?A. Well, before that time—sometime in the morning, I  was told that if anybody wanted to come to see me for me to say I didn’t want to see them. They said that the officers were willing to protect you. I f  you go out and talk with people and people get to coming in here to see you, something is liable to happen to you, they are liable to kill you at any minute; and the papers have gotten out the report you are the man and if you talk to people, anybody is liable to come in here and kill you. They said ‘ you don’t even want to see your boss man. They said if anybody comes here to see you what are you going to tell them? I  said I  would see them.Q. Were you taken in a car that Friday afternoon?A. Yes, sir; taken over on Madison up in an office upstairs sometime.Q. You were brought back from Madison; where were you taken when you were brought back to the police station?A. I  was brought back.Q. That was Friday afternoon?A. Yes, sir.Q. Where were you taken, if anywhere, that night?A . Well, that evening or that night I  told them I  was hungry and tired and sleepy; and



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they made several remarks—You are not sleep­ier than we are, we were up just like you. They finally put me in my cell to get my supper on Friday night, and in a short time they come back and got me.Q. Did you get your supper that Friday night ?A. Well, no, sir: I  didn’t get it; it was there, I  think, but I  didn’t get it; I  was so sleepy and tired I  just went in there and fell across the bunk in there and went to sleep.Q. Was that the first sleep you had had since you were arrested?A. That was the first I  remember of.Q. Up to Friday night?A. Yes, sir.Q. How long were you in your cell at that time ?A. They told me I  was in there an hour.Q. You went in and went to sleep?A. Yes, sir.Q. Did they wake you up and take you out of the cell?A . Yes, sir.Q. Where did they take you to?A . They went out Poplar Street to Highland and over Highland to Summer and back in town.



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Q. Please tell the jury, Charley, what, if anything—how many officers were in the ear with you?A . It was full—a seven passenger car, and it was full. I  think three on the back—two on the back with myself, and two up in those little seats and two on the front seat, I  think—that is right.Q. Wliat kind of an automobile was it, if you know?A . I  think it was a big car; I  think it was a Packard.Q. A  big Packard car?A . Yes, sir.Q. Please tell the jury, Charley, in your own way, what these officers did to you and what they said to you on that trip to Highland Ave­nue.A . Well, when they got started out they said to me that they were going to take me for an automobile ride. I  said I  was sleepy and tired. Would I  like to go out in the fresh air? I  told them yes, sir. So, by the time—I think they went straight out Adams to Manassas or Court Street, crossed over to Poplar, I  don’t just re­member; but any way by the time we got into Poplar Street, Chief Griffin was on the back seat with me; he kind of leaned over to me real close. I f  I  remember correctly he had his arm around my shoulder, and he got real close to me and said, “ Well, now, Charley, we are tak­ing you out for a good nice drive to cool you off. He said: we want you to come clean and tell us



about, this thing. Tell us the truth; tell tis that you committed this crime and we will protect vou.’ 1 told him, well, Chief, 1 didn’t do it and I  don’t know nothing about it; you don’t want me to say I  did something I  didn’t do, do you? He said ‘ no.’ So, as we went on out Poplar Street he continued to question me as to where I  had gotten the watch from. By that time we got out I  guess to the end of Poplar—not to the end, but where the car line ends, out in the woods where it is dark out there. He put a col­lar around my neck and told me that it was the dead man’s collar which I  had killed. T told him no, sir. He said if I  didn’t tell him about it they were going to take me out there and let those people kill me just as I  killed that man, only they were going to tie me up to an auto­mobile and drive by and let the people shoot me. T was very frightened at first, and I just begun crying and hollering and saying I  didn’t do it, please, sir, don’t let them kill me. They said, well, come clean, then, about it. So by the time we got out to Highland he said to some of the men, don’t drive so fast, to the man that was driving,—don’t drive so fast, Charley is going to tell us about it now. He said just drive slowly; don’t drive so fast and he will tell us. I  told him I  would tell him anything he wanted to know, but I  didn’t know that; he didn’t want me to sav something I  didn’t know. So finally they gotten out there and stopped, and they— two of them got out, I  think—three of them, got out immediately. They talked around there for a while—Q. Out at what place?A . This was out on Highland Avenue where the place where man got killed.



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Q. All right,A. So finally they decided to come back to town and said if I  would talk to them and tell them about it they would see no harm came to me. So finally they come on back.Q. What did you tell them when they told you to come through and tell them the truth?A . Well, I  told them I  didn’t know anything about it; finally they—I got so anything they asked me I  would say yes, sir, to, but when they asked me did I  do it, I  would say no, sir, I  did not. So he told one of the men—he is almost at the breaking point; just keep him right here in this chair; he will be all right by morning.Q. When was that, after you got back?A, After we got back to the police station.Q. Were you kept in the office of Chief Grif­fin all during Friday night after you got back?A. Yes, sir; I  set right there in that chair.MR. M cCO R M ICK : Let me see the collar.GEN. M cLA IN : Don’t dislodge the bullet in it.Q. Does that look like the collar Chief Grif­fin put around you?GEN. M cLA IN : Don’t finger the bullet, that is going to be important now; catch it by the other end.Q. Does that look like the collar?



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A . Yes, sir; that looks like the collar,Q. What did they say to you when Chief Griffin put that collar around your neck?A. He told me to come clean and tell him about it.Q. Tell him about what?A . About the murder of Mr. W. (). Spencer.Q. Did you or not tell the officers that you would confess to this crime?A. Yes, sir; I  told them on the way coming- back from out on Highland Avenue that I  would if they would see to it that nobody would kill me; and they made me all the promises in the world that they would see to it; and even went so far as to saĵ  that they would not double cross me; that they could not do that—some­thing to that effect—that they could not do that.Q. And did they talk to you Friday night?A . Yes, sir.Q. And on Saturday?A . Well, practically all day Saturday.Q. Were you in Chief Griffin ’s private of­fice?A. Saturday?Q. Yes.A . Yes, sir.



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Q. Did the same officers talk to yon all the time ?A . No, sir.Q. Different officers'?A . Yes, sir.Q. Did they talk to yon at different times— different officers'?A. Yes, sir. Just as the Chief would get through with me there would be somebody to take liis chair and sit right in front of me and talk to me.Q. Now, when did you tell them that you would confess and sign a written statement!A . Well, I  told them that I  would do any­thing when we got hack from Highland Avenue.Q. On Saturday night when did you tell the officers that you would do anything they want­ed you to do and sign the statement?A . That was late Saturday night I  know. 1 was very nearly gone. I  could not hardly sit up that Saturday night.Q. Charley, were you allowed to get any sleep on Friday night?A . No, sir, not a wink.Q. Were you allowed to get any sleep or. Saturday?A . No, sir; not a wink.Q. And up until Saturday night at 11 or



56
12 o’clock, were you allowed to get any sleep?A . No, sir.Q. Tell us what, if anything, the officers would do when you would doze off or go to sleep in vour chair?A. Well, it was a large man stayed with me Friday night, and another small man and some police officers, and usually there was somebody sitting right in front of me and I would sometimes do that way and they would knock my hand out from under my chin like that, and if they caught me sleeping they would kick me on the leg and wake me up and some­body would pull my ears and raise my chin up or maybe take my head like that and push it up. Several times they pulled my ear. Said they thought a good cup of cold water would do me good. I  said if you would give me a drink I  would like to have it. They said no, they would not give me a drink until the Chief come, then they would give me some water.Q. That was on Friday night?A . He give me some water Saturday morn­ing. #  #  *  *  #Q. State whether or not you were cursed by the officers?A . Yes, s ir; everything that could fall from the lips of a man. Even in the presence of my wife I  was cursed and she was cursed— the lowest things that could fall from the lips of a man.



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Q. Charley, did you kill Mr. Obe Spencer.A . No, sir, I  did not.Q. Have you ever killed anybody?A . No, sir.Q. Have you ever robbed anybody?A . No, sir; always tried to work hard and make an honest living.Q. Did you kill Miss Ruth Mcllwain Tucker ?A . No, sir.Q. Did you kill Mr. Waller?A . No, sir.Q. What, if anything, was said to you by the officers before you signed these confes­sions in reference to feeding you?A . Told me I  would not get a bite until they had cleared up this thing completely. They said I  had made enough statements re­garding it and I  had to complete it before I would eat, sleep or drink; and if I  would come clean and tell the thing through and through and say what they told me to say or answer their questions, that they would give me a nice place to sleep, some water and buy me a lunch out of their pocket. Several of them offered to buy me anything I  wanted out of their own pockets, and the Chief tole me that he would do something that he never had did it before in his life and never did in the history of Mem­phis that he had known of, and that was to let me go up and sleep with my wife.



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Q. Was that about the time you signed these papers that they wrote out there?A . I  think it was.”#  # # # *Defendant further testified on direct examination before the jury with reference to using Bert Stev­ens’ car, as follows:Beginning on page 602 of the transcript:“ Q. Do you know Bert Stevens?A . Yes, sir.Q. Was he working for Dr. Maury when you were working out there?A . Yes, sir.Q. What kind of an automobile did Burt Stevens have?A . An old model Ford touring car.Q. Did he have a self-starter on it ?A . No, sir.Q. Is there any peculiarity about Bert Stev­ens, any part of his body withered?A . Yes, s ir; he has a withered hand.Q. Can he crank a Ford automobile?A . No, sir.Q. Did you drive or keep his car—the old Ford automobile?



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A . Yes, sir. I  have did some work on it, and in my doing work on it I  have kept it for a long period of time. One time I  got a part of it down there and kept it a good while.Q. When was that automobile sold!A . Well, he traded it in for—if I  remember correctly, on May 15th.Q. Of what year?A . 1923.Q. That old Ford automobile was tradedwhen ?A . May 15, 1923.Q. Who traded the automobile?A. Bert traded i t ; I  was with him.Q. You were with him?A . Yes, sir.Q. And where?A . A t Price-Barwick on Union Avenue.Q. What kind of a car did you get then?A . He gotten one that he could drive him­self; he gotten one with a starter on it.Q. Self-starter?A . Yes, sir.Q. After that did you use Bert Stevens’ automobile 1



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A. No, sir; never did after that.Q. How do you remember that date?A . On that date—same date, my wife’s sis­ter was buried and we went home with them arid come on from there over to Price-Bar- wick’s with Bert to get his car and told him what I  thought about it being a pretty good trade. ’ ’The following other testimony was introduced in behalf of defendant on preliminary examination in the absence of the jury.Beginning on page 216 of the transcript, the tes­timony of Emmett Gowan:“ Q. What is your name?A . Emmett Gowan.Q. What is your occupation?A. Reporter for the Scimitar.Q. Did you have occasion to be over at the Police Station at Inspector G riffin ’s office the night that Charles Barr was supposed to have signed the confession.A . Yes, sir.Q. Can you state the condition of this boy Charles Barr at the time he signed that con­fession?A . I  could not state his condition; I  could state what his condition appeared to me to be.



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Q. As -it appeared to you, his physical ap­pearance.A . He seemed to be tired out; he could not talk very well.”Beginning on page 221 of the transcript, the tes­timony of Mr. C. L . Van Fossen:” Q. What are your initials, Mr. Van Fos­sen?A . C. L . Van Fossen.Q. Where do you live?A . 292 East Parkway, North.Q. Was Charley Barr in your employ at the time he was arrested?A . Yes, sir.Q. After his arrest did you make any visit or visits to the police station?A . Yes, I  called the night he was arrested.Q. Who was with you?A. My wife.Q. Will you please tell what transpired at the police station on the occasion of your first visit ?A . I  called to see Inspector Griffin and wanted to talk with Charley Barr because I  believe that possibly he was innocent.GEN . M cL A IN : Ju st a minute. Just tell



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what you did and not what you believed, or yoru opinion.Q. Ju st tell your conversation with Chief G riffin!A . I  asked him if I  could see Charley and talk with him. I  had called over the phone and talked to one of the men, and we had this con­versation over the phone, and I  told him I wanted to talk to Charley with the idea of find­ing out or trying to help Inspector Griffin find out who was guilty.GEN . S H E A : Ju st a minute, if your Honor, please, I  object to what he was trying to do or to the conversation he had.A. That was the conversation.Q. Proceed.A . I  knew he was being held because a watch had been found that had been stolen from the lady that was shot. And I  told In­spector Griffin that I  might be able to get the information from Charley as to where this watch was gotten and that that would prove who wTas guilty, or help to prove it, but he wouldn’t let me see him.Q. Why did he say he would not let you see him?A. He said that outsiders talking with some one they were working on would interfere with his work.Q. Did you go to the police station the next morning?



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A. I  did.Q. What transpired then?A. I  talked to him.Q. To wrhom?A. Inspector Griffin.Q. A ll right.A . And he wouldn’t let me see him. He said he had him almost to the breaking point, and he was afraid that my coming in would interfere.Q.point, That he had him almost at the breaking and he wouldn’t let you see him?A. No.Q. Told you you couldn’t see him?A. Yes.Q. Then where did you go!A . I  tried to see Commissioner Allen. I  knew him, and went to his office, or tried to locate him. I  felt that he might be able to getme permission to see him, and I  made it clear to Inspector that I  didn’t want to help shield anyone that might be gnilty, that I  really want­ed to help them as much as possible, and that I  wanted to help the boy if he was innocent, and I couldn’t see Commissioner Allen, and I  started over to the office, and I  knew Dave Puryear, and I  thought I  would go in and see him and see what he would suggest. I  went by and saw him, and I  told him they wouldn’t



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let me see him, and Judge Puryear said that if he had an attorney an attorney could see him, so I  asked him if he wouldn’t be my at­torney and go ahead with it and arrange the matter so I  could see him. We went over to the police station, Mr. Puryear with me, and we tried to see Charley over there.Q. Were you there with Judge Puryear when he made application to see Charley Barr ?A . Yes sir.Q. As his counsel?A . Yes sir.Q. Now what transpired?A . We saw Inspector Griffin go in the of­fice. We didn’t get to talk with him, but we did ask another man, I  believe it was his Sec­retary, and we asked to see Charley, and he went in and I  presume asked Inspector Griffin if we could see him, but he came out and told us that we couldn’t.Q. Did the Secretary of Inspector Griffin tell Judge Puryear, the attorney for Charley Barr, that he couldn’t see him?A . Yes sir.Q. In your presence?A . Yes sir.Q. What did Judge Puryear do?A . He said that he would see him, that he would get a habeas corpus to see him.



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Q. And the habeas corpus was sued out!A . Yes sir.Q. And Judge Puryear asked as Charley’s counsel to see him and was refused!A . Yes sir.Q. And he appeared as his counsel in Police Court when he was bound overtA. Yes sir, that is right.Q. You know that the—just a minute. On the occasion of the first visit, what time of the night or evening was it?A . It was after dinner, I  presume about 8 or 8:30.Q. And what was the time that you went down the next morning!A . I  don’t recall now. I  would say some­where around 10 o ’clock.Q. What time—you talked to them over the telephone. What did they tell you they were holding him for! What did they tell you on what charge?A . Mrs. Van Fossan telephoned. She had sent Charley out of the house to do some work. I  was down town and when I  got home she told me that they had arrested him, or that some­body come out and took him away. That was all she knew. I  assumed that probably he was at the police station, and I  asked them if they had him there, and they told me they had him there in connection with murder.



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Q. With the Obe Spencer murder!A . Yes sir.Q. And that was the day of the arrest!A. That afternoon.Q. They told you they were holding him in connection with the Obe Spencer murder!A. That is right.Q. And it was the same night you went down at 8 o ’clock!A . Yes sir.”Beginning on Page 230 of the transcript, the testimony of Dr. N. K . Moody, as follows:“ Q. State your name to the Court!A . N. K . Moody.Q. What is your business!A . Physician.# # # # *Q. Since 1915, Doctor, I  will ask you if you had occasion to be at the court house in Chief G riffin ’s—I  mean at the police station in Chief G riffin ’s private office during the time that the defendant Charley Barr was being questioned ?A . Yes sir; I  went by about 10 or 10:30 on Friday night, and stayed until about 9 o ’clock Saturday morning.



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Q. About 10 or 10:30 Friday night!A . Yes sir.Q. That was the 18th of Ju ly !A . I  guess it was. I  don’t know.Q. And stayed until about 9 o ’clock on the next morning!A . Yes sir.Q. That would be the 19th, if that was the 18th!A . Yes sir.

O'. -V. "  J/. •I',-w -r.~ w wQ. Now, what was the condition, the physi­cal condition of Charley Barr at the time, doctor ?A . Well, his physical condition seemed to be a little sleepy—he did.Q. He seemed to be a little sleepy. Did he or not answer the questions in a monotone!A . Yes. He didn’t answer them. He just would mumble them.Q. Was that mumbling loud and very audi­ble, or very low and indistinct?A . It varied. Sometimes it was and some­times it was a little indistinct.Q. I  will ask you "whether or not he seemed at that time to be groggy ?GEN . S H E A : Ju st a moment, if the Court please.



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MR. C R E A S Y : I  think that is a proper ques­tion. I  asked him whether or not.GEN S H E A : Ju st a moment. I  haven’t made my objection.MR. C R E A S Y : I beg your pardon.GEN . S H E A : I f  the Court please, I  would suggest that the counsel not lead the witness, but let the witness testify.T H E  C O U R T : He asked whether he appeared to be groggy or not. I f  he knows he may answer that question. Proceed.Q. Did he or not, doctor?A . Well, I  didn’t make any test on him. Ju st from observation he probably might have been groggy.Q. From your observation of him did he look to be in that condition ?A . Well, I  think so.Q. You think so?A . Yes sir.Q. You stayed there from about 10:30 that night until after 9 o ’clock the next morning. Did the examination or questioning of Barr by the officers continue throughout that time?A . More or less; yes sir.Q. Was he questioned all of that time by



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the officers—by one officer, or did the officers work in relays?A . Not one continually, but several of the officers questioned him.Q. They worked in relays and one ques­tioned him a while and then another officer questioned him for a while?A . Yes sir.

Q. You stated that lie appeared to be sleepy. I  will ask you whether or not, doctor, during the course of this questioning he tried to sleep!A . Yes, he would almost go to sleep.Q. And, doctor, did he prop his head on his hand, in this position (indicating) with his elbow on his knee?A. I  don’t remember. Several times when he didn’t answer questions they would get hold of his shoulder and ask him to talk, to answer the question. They wanted to find out whether he was guilty or innocent, or not.Q. That was when he was trying to sleep?A . Yes sir.Q. Did jrou notice this, doctor? Look at my position here. That he would prop his chin on his hand like this and try to sleep?A . I  think so; yes sir.Q. And when he did that, doctor, I will ask



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you whether or not an officer would knock that hand out from under his chin in order to wake him up?A . I  don’t remember whether he did that, but they would ask him to—shake him and tell him to wake up and answer the question.Q. They would shake him and tell him to wake up and answer the question?A . Yes sir.Q. I want you to be positive about that, doc­tor. Did you or not at any time see any of the officers there that might knock his chin out from under him while he was trying to sleep?A . I  really don’t know. Possibly they did.Q. Possibly they did. You couldn’t be posi­tive about that doctor?(No answer)Q. In questioning this defendant did the officers call him names?A . Well, they—MR. M cC O R M IC K : Answer the question, doctor.A . I  don’t remember exactly all about the conversation or anything that took place there.Q. That is very true.A . It is possible—might have been.T H E  C O U R T : What do you mean by calling him names?



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MR. M cC O R M IC K : Bad names, applying epithets to him.M E. C R E A S Y : They applied epithets to him, and if your Honor will permit me, I  would like to call some of them, and ask the witness if those epithets weren’t applied to the de­fendant.T H E  C O U R T : You weren’t there, were you? MR. C R E A S Y : No sir.T H E  C O U R T : Well, you don’t know what was said. Ask the witness what was said, and if he knows he can state it.Q. I  will ask you, doctor, whether or not, at any time during the course of this questioning they applied to this defendant vile names?A. They called him a murderer several times.Q. Did they call him a S. B .f A . I  expect they did.Q. And they did that numerous times, did they, doctor?A . GEN . M cL A IN : Don’t lead the witness so much. He is an intelligent man. He is a doctor. He can answer your questions without leading him.T H E  C O U R T : Do you know whether they did or not. That is what he wants to know.A . I  don’t know what they called him and



I  can’t state exactly at this time what they did call him.Q. But they did call him vile names?*A . They would talk to him and try to get him to tell them about this, and he wouldn’t answer, and then they would go on and call him a murderer and all of that, and tell him they knew he was a murderer and ask him to tell them about it.Q. In other words, when they called him a murderer, did they cuss him, too?A . Yes sir.Q. They did do that?A . (No answer),T H E  C O U R T : He said “ Yes sir”  nodded his head. Did they do that or not?GEN . M cL A IN : I f  your Honor please, I  want to make this objection. As I  understand the rule, he has a right to direct the attention of the witness. He hasn’t got the right to make a suggestion. Mr. Creasy is asking the witness if such and such wasn’t done?T H E  C O U R T : He has a right to do that.G E N . M cLA IN . But not his witness.T H E  C O U R T : He has the right to direct at­tention of the witness.Q. Did they or not cuss him, doctor?



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A . They probably did.T H E  C O U R T : Answer yes or not.Q. Did they or not!A . Yes, I  think they did.Q. Did you tell him that—did they or not tell him that it would be better for him if he confessed to it?A . They told him if he was guilty they wanted him to confess, and if he was not guilty they wanted him to tell where he had gotten this evidence they had so that they could free him,G-EN. M cL A IN : That is fair enough.MR. C R E A S Y : I  am going to object to that now, your Honor.T H E  C O U R T : I f  you want to make an ob­jection make it to the Court.. Don’t argue among yourselves.Q. Did they or not tell him that he commit­ted the murder and it would be best for him to confess to it, did that occur?A . Yes sir, they said he committed the murder.Q. And that it would be best for him to con­fess to it, did that occur?A . Yes sir, they said he committed the mur­der.



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Q. And that it would be best for him toconfess to it!GEN . Mel .A IN : I f  your Honor please, I  ob­ject to counsel leading the , witness. This is his witness. Don’t lead him.T H E  C O U R T : You were there from when ?A. From 10:30 until 9 o’clock next morning.T H E  CO U R T : Ju st tell what happened and what was said, as you remember it.A. There was quite a line of questioning to him. They questioned him and asked him about all of these things, and he would tell them about it, and then they would check that up and find it wasn’t so, and then he would say something else, and I  don’t remember everything that was said.MR. C R E A S Y : I  want to make this observa­tion to the Court. It is perfectly apparent to the court that this witness is very reluctant in his testimony in telling what happened there. I  don’t mean to try to evade the rule of evi­dence in examining him by leading any witness, but it is perfectly apparent to the Court that I  have got to put in the mind of the witness the thing that I  want to ask him about.T H E  C O U R T : This is an intelligent witness, a physician and he was there from 10:30 until 9 o’clock the next morning. He ought to be able to tell what happened there and what was said.GEN . M cL A IN : Does he claim that this is a hostile witness?



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MR. C R E A S Y : No, but a very reluctant wit­ness.GEN . M cLA IN : I  don’t see what right that gives you to lead him.

Q. I  want to ask you, doctor, whether or not in the course of your question— I  mean his questioning there he was told that he was a murderer and it would be better for him to confess to it?A . Yes sir.GEN. M cLA IN : I f  your Honor please, 1 ob­ject to that, he has already answered that ques­tion?MR. M cCORM ICK: What was your answer, doctor?A . Yes, sir.GEN. M cLA IN : He has already answered it.Q. During the course of that questioning, did they or not tell him that it would be worse for him if he didn’t confess?GEN. M cLA IN : I f  your Honor please, I  ob­ject to that. I f  that isn’t leading question, I  never heard one.TH E COURT: Did—MR. C R E A S Y : That is not a leading question.TH E  COURT: Did he make that statement or not?



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A. They made the statement it would be a lot better if he would confess.Q. The last question was, did they or not tell him it would be a lot worse for him if he didn’t confess ?A . Possibly they did. It means about the same thing. # * # *Q. Now, then, did they tell him when he de­nied it, did they or not tell him when he de­nied it it would be worse for him if he didn’t confess?A. Possibly they did.”And on cross examination, beginning on page 245 of the record:’ 4 Q. As I  understand from you, around 9 or 9:30 he appeared to be sleepy and tired. Did you say he was groggy then at all?A . He got a little groggy, Mr. McLain.Q. I  am talking when you first went in there. Between 9 and 10 o’clock, was he a lit­tle groggy?A. He might have been then. I f  he was he got more groggy.”And on re-direct examination, beginning on page 254 of the record:“ Q. One other question. When you left there on Saturday morning about 9 o’clock



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were the officers at that time continuing their questioning?A . Yes, sir.Q. They were?A . Yes, sir.”Beginning on page 255 of the transcript, the tes­timony of Judge I). B. Puryear:“ Q. What is your name?A. D. B. Puryear.Q. Judge Puryear, you are a practicing at­torney at the Memphis Bar?A. Yes.Q. And you have been for many years?A . 13 years.Q. And you were Judge of the First Divi­sion of the Criminal Court for how many years?A . Two and a half years—the thirteen in­cludes the two and a half..Q Judge Puryear, were you at any time employed to represent Charles Barr as his counsel ?A . Yes. His employer, Mr. Van Fossan, came to see me one day, on the day that he was arrested, as I  understand, and employed me to confer with him and to look after him in any way that I  could as his counsel, telling me he was charged with a serious offense of some



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kind. A t the moment lie didn’t connect it with this offense.Q. Pursuant to that employment, what, if anything, did you do.A. I  went down to the station house to see him, and Mr. Van Fossan went with me.Q. Please tell the Court what took place at the police station.A. I  presented myself at the main office of the Detective Department and told—talked to Mr. Phillips, and told him I  wanted to see Charley Barr, that he was being held there.Q. Who is Mr. Phillips?A . He works in the office of the department,and I  think he is Secretary to the Chief.Q. What happened?A . I  told him I  wanted to see Charley Barr, and he left me standing there and went into a room in the detective department, one of the offices, and reported to me that I  couldn’t see him.Q. Did you tell Mr. Phillips, the private sec­retary of Chief Griffin, that you were the em­ployed counsel of Charles Barr, and wanted to see him?A . I  don’t know. Of course, he knew mv business. He knew I  was a lawyer, but I  told him that Mr. Van Fossan had employed me to represent him and it was upon that authority that I  wanted to talk to him.



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Q. Employed you to represent Barr!A. Yes.Q. He went into a private office, that is, Mr. Phillips did that?A . He went into an office after I  told him what I  was there for—to see—to talk to Barr. The office that I  went into is, of course, one of the offices in the station house. It is the of­fice immediately to the left after you pass the stairway going up to the City Court. I  don’t know the name that is on the door.Q. Was that the office that Inspector Grif­fin coupled from time to time?A . I  think so, but I  am not sure. I  never talked to him in there, because most of the times that I  talked to Inspector Griffin he was out in the hall, but I  think that was the office he stayed in most of the time—or at least at thattime.Q- What did Phillips tell you?A. That I  couldn’t see him.Q. Hid he give you any reason?A. No, just said I  couldn’t see him.Q. And you did not see him?A. No, I  did not.Q. What did you do?A. I  don’t think I  argued the matter with Mr. Phillips at all. I  did say to him that I  had



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a right to see him, but I  didn’t argue the mat­ter at all and sued out a writ of habeas corpus before Judge Guthrie. The habeas corpus was based upon the fact that he was being held without a warrant, and for the further fact that the law was being violated in this case in that regardless of the crime he was charged with he was entitled to confer with counsel. I will go ahead with that if I  may.Q. Sure.A. That was the day after his arrest, and the writ was returnable before Judge Guthrie and set for hearing early in the afternoon. I think at 2 o ’clock. A t that hour why a contin­uance was asked for another hour by the de­fendant in the writ, who was Chief Burney and Chief Griffin—they were the defendants in the writ. I  was there at 2 o’clock ready to proceed in the matter, waiting for them to come on and I was sitting there talking to Judge Guth­rie, and while there Inspector Griffin phoned and asked that the matter be delayed an hour, and at his request it was set for an hour later. I  may be incorrect about 2 and 3 o’clock being the hours, but I  don’t think so.GEN. SH E A : That is correct.Q. After the hearing Judge Guthrie re­manded Hie defendant, Charles Barr back to the custody of the Police Department, did he not!A . Yes, sir, with instructions, however, that he had the right to confer with his attorney, and that I  should see him.



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Q. Were you able to have a private consul­tation with Charley Barr upon any occasion ?A. When I  came—after that hearing' was over a reasonable time, that is, sufficient time to take him back down, I went down to the sta­tion house and was permitted to talk to him through the door, the wire door to the entrance to the cells in the police station.Q. The turnkey was standing there when you held that conversation, was he not?A. T don’t think he stood there listening to me. He stood back so that I  could talk to him without the turnkey hearing me. He didn’t stand there nad listen, as I  observed.Q. Did you talk to Charley Barr in Judge Guthrie’s office.A. Just a very few words only. The only substance of the conversation that I  really cared to have with him there was simply to let him know that—I  hadn’t talked to him before —that Mr. VanFossan had been to see me and I  was acting on the strength of the employment of Mr. Van Fossan, so that he might know who I  was and approve that and let me know if he wanted me to look after the matter for him. That is practically the conversation I  had with him.Q. On the following day, which was Satur­day, was Charley Barr’s ease called in the City Court for hearing?A . Yes, it was on Saturday. It was put on the docket in the regular way and came up for call in the regular way, which was Saturday,



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which was the following day after the habeas corpus.Q. What action was taken in the City Court?A . The case was continued until a later day, T think Monday, but T don’t remember that ac­curately. When the case was called the next time I objected to the continuance and asked for an immediate trial, believing my client not guilty—wishing to enter a plea of not guilty, I  mean. A  warrant in the meantime had been sworn out, and, as you know, as a matter of law the City Court could not hear any evidence in the matter, and the only thing to be done would be to hold to the Grand Jury in a case of this sort without bail, or in some cases with bail, and I  asked that action be taken on the matter immediately.Q. What position did the Police Department take ?A. They asked for a continuance.Q. What reason did they give to the Court for a continuance?A . The exact statement was they hadn’t completed their investigation.Q. What action did the Court take?A . I  deemed at the time that any action in the Police Court would be immaterial, and I suggested they could complete their investiga­tion after the defendant had been bound over.GEN. M cLAIN : Judge Puryear, you can’t argue the case, but only testify.



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TH E W IT N E SS: I thought that is what you wanted.(JEN M e LAIN : That is what he did want, but I  don’t think it is competent.TH E W IT N E SS: L will stop if you object.Q. He was bound over!A. No, he was not.Q. And was kept in custody of the Detective Department?A. Yes, he was remanded back to the Police Department. He was brought up and sent back down stairs. I  talked to him briefly there, and the case was continued until Monday. Whether it was continued again after that I do not know, because I  wasn’t connected with it further after that time.Q. When you sued out the writ of habeas corpus had his name been placed on the docket and any charges been placed against him?A . At the time that I  got the writ it stated that there had not, and I  had found no charge against him on the day previous. There was a charge placed against him on the day—on the morning the writ was sued out, and when the hearing came up that afternoon there had been a charge placed against him. Whether it was there before the writ was actually issued, I don’t know. There was a warrant produced on the hearing, and I  did not pursue that mat­ter any further, and didn’t argue with them about it. ’ ’



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And on cross examination, beginning on page 262 of the transcript:“ Q. And you told him in open Court he did not have to tell any of them about the crime unless he wanted to and you were his lawyer!A. 1 told him he was accused of this crime, and what his rights were.Q. You told him to keep his mouth shut!A . No, I  told him that under the law he was not compelled to discuss the matter or make any statement.Q. And Charley was intelligent and under­stood you!A. You know more about Charley than I  do. I  have been with him several times—I mean you have been, and this was the first time I  saw him.’’’The testimony quoted above was retried before the jury after defendant’s motion to exclude his al­leged statement or confession was denied by theCourt.We have quoted the foregoing testimony in behalf of defendant so that it might be simply stated that defendant was arrested without any incriminating- evidence against him, except the watch pawned by his estranged wife; carried to the Memphis Police Station and put through a terrific grilling and cross examination in an effort to induce him to make a statement or confession, which examination was al­



most continuous for fifty-nine (59) hours, without defendant having the proper food, water and sleep; that during said examination when defendant’s an­swers were not what the officers desired, he was told he was lying; that he was told by the officers he was a murderer, and it would be better for him if he confessed and worse for him if he did not; and that they would protect him and see that his life was saved, if he would confess; that during said examination he was cursed and beaten numerous times by police officers; that he was denied the right to have counsel and the right to know the na­ture of the charge for which he was held; that after many hours of questioning he was taken in the night time over the scene of the tragedy by police offi­cers; that the dead man’s collar was placed about his neck -an-he was told that they were going to let the mob kill him at the scene of the murder if he did not confess; that finally, while in a weakened and groggy physical condition, with his spirit broken, he was promised the privilege of sleeping with his wife if he would sign a confession; that wlfile in that condition, he signed the statement or confession introduced in evidence before the jury and was immediately thereafter given food and al­lowed to sleep with his wife while confined in the Memphis Police Station as a prisoner. This was never done before.
u4esrtjDefendant has made the above statements in the evidence quoted in this brief and from the evidence contained in the transcript.



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Let us now see how much of the above statement the State of Tennessee admits and just how far the State’s proof corroborates the testimony of defend­ant.
After Inspector Griffin had simply stated that defendant’s statement or confession was freely and voluntarily made, without hope of reward or fear of punishment, which was a mere conclusion on the part of the officer under—the facts and circum­stances surrounding* the making of said .statementi<3. •/ l"Y(4  M U r l 1or fcontession the Court held said statement or con­fession to be admissible in evidence, over the de­fendant’s objection and exception, and placed the burden on the defendant of proving his alleged statement or confession to be involuntary.
Beginning on page 131 of the transcript, the tes­timony of Inspector Griffin, in the absence of the jury, the Inspector admits that the examination in an effort to induce the defendant to make u state­ment or confession lasted 59 hours, and was almost continuous during that time.Beginning on page 381 of the transcript in the presence of the jury:“ Q. And you state at the time the writ was served it was approximately 1:30, and you were questioning* him at that time!A . No, sir; I  said I  wasn’t one of the men there.



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Q. The men who were questioning him?A. Yes, sir,Q. How long had that been continued?A. T D O N ’T KNOW ; MR. C R E A SY , IF  IT W IL L  DO YO U  A N Y  GOOD, FOR TH E P U R ­PO SE OF E LIM IN A T IN G  TH IS ARGU M ENT W E W IL L  S A Y  W E T A L K E D  TO H IM  A L L  TH E TIM E.Q. A L L  TH E TIM E?A. Y E S , SIR , IF  IT  W IL L  DO YO U  A N Y  GOOD.Q. You did go by the scene of the tragedy ?A. We went over the ground where the mur­der was committed.Q. You have seen the collar of the dead man that was introduced in evidence here?A . Yes, sir.Q. Did you or any of your officers at that time put on the neck of this defendant the dead man’s collar?A . We did not. And this murder was not mentioned to that negro on this trip. I  can tioned the men before they left headquarters not to mention anything about this murder on that trip, and that was not done.Q. Why did you take him over the place wdiere the man was killed?A. I  wanted to see what effect traveling



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over the ground would have on the negro.Q. You wanted to see whether it would scare him?A. I  did not; I  wanted to see what effect it would have on him.Q. You didn’t stop there?A . No, sir. Now, may I  explain here, Mr. Creasy, we have had nothing through this whole thing but the best motive.Q. I  am not questioning that.A . You brought out here there has been a collar put on this negro and nothing said to him about the community. We rode over the ground and up until that time he had not ad­mitted to the murder of Mr. Spencer or the murder of anybody, and it was not until hours later the following night that he did that.Q. This collar introduced in evidence has been in your possession and the possession of one of your officers ever since the tragedy?A. Yes, sir; I  think it has. I  will tell you where the negro saw the collar, he saw it on my desk in my office.Q. You say you carried him by the scene of the crime for the influence it might have on him?A . No, sir; I  said I  wanted to see what ef­fect it might have on him.Q. You thought by carrying him by there it



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might make him confess to the murder, did you not!A . No, sir.Q. You did not!A. No, sir, that was not my idea. I  wanted to see whether it affected him any.Q. You wanted to see whether it affected him 1A . Yes, sir.& ^Q. And didn’t they tell him, Chief, if he signed this statement that he would be permit­ted a privilege no other prisoner had been per­mitted,—and that was to sleep with his wife?A. No, sir.Q. Was he permitted to do that!A . Yes, sir—that was afterwards—after the confession was signed; and Charley had been talking to different people there in the room, including Judge Davis, Mr. Kahn, and others and he had eaten his supper. I  said Charley, do you feel better? He said: I  do. I  said, is there anything else you want? He said; I would like to go upstairs where I  could talk to my wife. I  said, all right, you can do that. And we let him do that.Q. But you did permit him to go upstairs in the cell with his wife?A. Yes, sir; I  didn’t take him up there my­self; that was my instructions to the detectives.



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Q. And that was permitted?A . After the confession had been signed— two confessions had been signed. No mention of that was made up until that time and for several minutes afterwards.Q. But this was permitted after the confes­sions were signed.A . Yes, sir.S& # # #Q. Did you or your officers at any time dur­ing the period ever put your hands on Barr?A . Yes, sir; I  did.Q. What, that violently?A . No, sir.Q. Where did you put your hands on him?A . May I  explain? When he would'sit ov<fr in the chair this way and I  would ask him a question and he would sit there and I  would take his hands gently, raise his chin and I  would say: Charley, look me in the eyes and an­swer my question. He would answer that ques­tion and sit there awhile and his head would go down again and I  would take my hand and raise his chin—not violently but gently, and ask him to answer my question.

Q. He was arrested and brought to your of­fice about 1 to 1:30 on the 17th?A. Well?



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Q. And lie made the written confession at 12:15 the morning of the 20th?A . I  think that is right.Q. That is approximately 59 hours?A. I  have not counted.Q. From 1 or 1:30 on the 17tli to 1 or 1:30 the 18th would he 24 hours; is that correct?A. Yes, sir.Q. From 1 or 1:30 the 18th, to 1 or 1:30 on the 19th, would be 24 hours more. And from 1 to 1:30 the 19th, to 12:15 on the 20th that night, would be about 9 hours?A. About that.Q. I  mean about 11 hours, would it not?A . Yes, sir.

% '0:Q. And that, added to 48 would make about 59 hours?A . A ll right.Q. F id  you talk to Judge Puryear per­sonally?A. I  did not.Q. Fid your private secretary tell you that Judge Puryear had asked for an interview with Barr and that he represented Barr as his coun­sel?A . T think some one came in there and told me Judge Puryear is out there with Mr. Van



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Fossan and that he had been employed to rep­resent Barr?Q. And wanted to talk to him?A. Yes, sir.Q. And you refused to allow him to talk with him?A. I  told him we didn’t want to be dis­turbed at that time.Q. Didn’t want to be disturbed at that time?A. Yes, sir.Q. And you didn’t let him talk to him?A . I  don’t think he insisted on it. Just told him we didn’t want to be disturbed at that time. I  didn’t tell him that he could not talk to him.Q. But he did ask for permission to talk with Barr as his counsel?A . So I  was informed.Q. And you did not permit him to talk with the defendant?A . I  did not.Q. And that was the third time Mr. Van Fossan was down there to talk with him?A . Yes, sir.Q. And he nor Judge Puryear were per­mitted to come into your private office and talk to him?A. That is right.”# # * # #The State admits that defendant was told he was



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lying whenever his answers were not what the of­ficers desired.Beginning on page 470 of the transcript of the testimony of John Bailer:“ Q. This question, if you please. Did you tell Charley Barr that it would he a lot better for him to come clean and tell the truth about it and make a confession if he was the one?A. I  told him to tell the truth, it would be better for him to get it out of his system.Q. Did you hear Chief Griffin tell him that?A . I  did not.Q. Did you hear Mr. Quianthy tell him that?A . Nobody talked to him while I was there except Chief Griffin and myself.Q. What did Chief Griffin tell him?A. He asked him where he got the watch, and then after he changed and quit saying he got it from me he said he got it from a negro on Beale Street, Inspector Griffin said: ‘You told Mr. Bailer a lie, and how do we know you are telling the truth now?’ and he said, ‘ I  am not going to find this negro, because if I  did bring him here he would tell the truth,’ and when I  left there he was saying that he got it from Eska May Hays, when I  left.Q. Chief Griffin did tell him that he wouldn’t look the negro up that he got the watch from?



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A . Yes, sir.Q. Because lie was telling liim a lie ?A. Yes, sir.”Beginning on page 375 and 376 of the transcript:“ Q- You say he first stated that he had bought the watch from Mr. Bailer?A . Yes, sir.Q. After your investigations you informed Charley Barr that he was telling a falsehood about that, he didn’t get it at Bailer’s?A. Yes; after we talked to Mr. Bailer and found out it was untrue.Q. Did you tell him that he had lied about it?A. Possibly I  did; because he had.Q. He then said he got it from Turnstall ?A . Yes, sir.Q. And you made investigation about that!.A . Yes, sir; brought Turnstall in and had him confront Turnstall.Q. Then he admitted he had lied about that?A . Turnstall told him that.Q. And you told him too, did you not?A. Yes, sir.



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Q. Then told him that he had better come on and tell the truth?A. I  asked him to come on; you have told us several lies about where you got it; Turn- stall said he never saw the watch before; that he only saw the pistol the one occasion; that lie did not give it to your wife. Why not tell us» the truth about it, Charley?”

yt'rvcL'Aft" in the presence of the jury.Inspector Griffin admits that he put his hands on defendant, but says it was very “ gently.”Beginning on page 397 of the transcript in the presence' of the jury:“ Q. Did you or your officers at any time during the period ever put your hands on Barr?A . Yes, sir; I  did.Q. Was that violently?A . No, sir.Q. Where did you put your hands on him?A. May I  explain? When he would sit over in the chair this way and I  would ask him a question and he would sit there and I  would take his hands gently, raise his chin and I would say, Charley, look me in the eyes and answer my question. He would answer that question and sit there a while and his head would go down again and I  would take my hand and raise his chin—not violently, but gently, and ask him to answer my question.”



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Inspector Griffin admits that defendant was not informed as to his rights. Beginning on page 137 of the transcript:

“ Q. When you first sat down and began to ask him questions, did you inform him that he was charged with the offense of murder in the first degree?A. i would not say that I  did, and I  would not say that I  did not. I  usually do that.Q. You know, Chief, whether you did that?A. I  do not. I f  I  had I  would have said so.Q. You mean— ?A . I  mean that which I  stated. I  don’t know whether I  did or not. Sometimes we do that. I  sometimes forget to do that.Q. You sometimes forget to do it?A . Yes, sir.Q. Don’t you recall whether you told him at the first conversation that he was charged with murder in the first degree?A . He was not, at that time, charged with murder. He was brought in to be interviewed about this watch. I  didn’t know at that time that he had committed this murder.Q. Nor do you recall that you did inform him that he was charged with murder in the first degree?A . Well, I  don’t know, Mr. Creasy. That



would be hard to say whether I  ever did or not. # # # # #Q. A t this first conversation did you inform, him that before he made any statement to you, that he had a right to the benefit of counsel?A. A t that time, as I  recall, he had not been charged with any offense; he was brought in and asked what he knew about this watch, the same as did his wife.”Beginning on page 141 of the transcript we find:“ Q. Then, at that time he was not informed that he had the right to have counsel there?A . I  don’t know whether at that time- 1 didn’t know that he was going to be charged with murder.Q. Answer the question. You didn’t at that time inform him?A . I  don’t think so.Q. As a matter of fact, you know you did not?A . No, I  did not.Q. And you did not inform him at that time that what he said would and could be used as evidence against him in the trial?A. I  think I  did.Q. Are you positive about that?A. Yes, provided that he had the watch, and that he was guilty of murder, I  always do that.



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Q. You always do that?A . Yes, always.Q. And you are sure you did that?A . I f  I did not it was an oversight. I think I  did. I  would not he positive.”And on page 150-151 of the transcript:“ Q. When they called him out that morn­ing, did you tell him that he was charged with murder in the first degree?A . No, I  don’t think so.Q. And you still examined him and talked with him with reference to these things, and confronted him with the witnesses you have spoken of, and the facts that yon say you had ?A . Yes, sir.Q. And all of that was in connection with the murder of Ohe Spencer?A . Yes, sir.Q. But you didn’t inform him that he was charged with that offense of murder in the first degree ?A . I  don’t think the warrant had been is­sued at that time.Q. Did you, at that time, tell him that he was entitled to counsel to represent him?A . No, sir, I  don’t think 1 did.”And on page 152 of the transcript:



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“ Q. A t that time did you tell him that he was charged with murder in the first degree?A . No; I  could not say I  did.Q. Did you, at that time, tell him that he had a right to have counsel?A. I  could not say that I  did.Q. Did you tell him what lie said could and would be used against him as evidence?A. I  told him that when he was first brought in. Every time the man was brought into iny office I  didn’t go over the same thing. I  told him that when he was brought in, ‘ I am going to interrogate you and anything you may say has to be free and voluntary on your part.’ 1 cannot remember all those details any more than I  could remember what I ate for dinner yes­terday.Q. But you do remember distinctly the de­tails of this on his part?A . I  do.

# # # # #Q. Why did you ask for that hour’s grace in the course of the trial of this habeas corpus proceeding?A . We were investigating other angles of the case and we didn’t want to be interfered with.Q. By counsel or anybody else?A . Didn’t want to be interfered with by anybody ?



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Q. Even with the Court with habeas corpus!A. I just said we didn’t want to be inter­fered with at a ll.”And beginning on page 364 of the transcript:“ Q. When you first brought Charley Barr in your office and began questioning him, did you inform him then that he was charged with the murder of Obe Spencer?A. He had not been charged with the mur­der of Obe Spencer at that time.Q. Answer the question, did you inform him of that?A. No, sir.Q- Hid you inform him that he was charged with any particular crime?A. No; he had not been at that time. Can I explain now?GEN. SH E A : Yes, sir; any explanation you want.A. The reason why we did not tell him that was because he had not been charged with anv offense, he had been brought in to explain how he came in possession of this wrist watch and this pistol.Q. Did you inform him that before he talked to anybody that he had the right to have the benefit of a lawyer or counsel?A . I  would not say that I  did or did not.



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Q. Would you say that you did or did not?A. No, sir.Q. You don’t recall?A. No, sir.Q. Did you tell him that first day I  am talk­ing about now—that he didn’t have to make any statement at all; and that what he did say could, and possibly would, be used against him in evidence?A. There wasn’t any occasion for me to make a statement.Q. Ju st answer my question; did you or not ?A . I  don’t think I  did. I  don’t think then' was any occasion for it, at that time.”Inspector Griffin admitted he used persuasion to induce defendant to make the confession.Beginning on page 165 of the transcript in the absence of the jury:“ Q. What were you doing to Charles Barr at this time?A . Talking to him.Q. Any other persuasion used, Chief?A . Persuasion?Q. Yes sir.A . Yes sir; we persuaded him right along,



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what we were trying to do right along was to get him to tell the truth.Q. You told him you were his best friend!A . I  did not.Q. You told him you were his friend!A . I  did not.Q. But you were persuading him?A . Tried to and finally did.Q. Tried to persuade him to confess?A . Yes sir.Q. Told him that it would be better for him if he made a confession?A . I  didn’t tell him anything of the kind.Q. What did you try to get him to tell?A . To admit that he comitted three of the most astrocious murders ever committed in this county.Q. What did you say—did you tell him that it would be the worst for him if  he did not con­fess?A . I  did not.Q. Better for him if he did?A . No sir, I  did not tell him—told him it was right always to tell the truth.



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Q. Did you tell him it would be better for him if he did tell ?A . I  did not.Q. What other words did you use?A . I  cannot recall.Q. But you did use persuasion and a lot of persuasion!A . I  tried to persuade him in a moderate way. There was no harsh means used. Told him to tell the truth. Certainly did not keep him in there to try to keep him from telling the truth. I  had him in there for that purpose.Q. You were using that persuasion in there 56 hours before you got the confession?A . He was not questioned 56 hours.Q. He was locked up and under your con­trol and custody during that 56 hours before you got the confession, was he not?A . You can count that up. Brought in be­tween 1 and 2 on Thursday and kept in there possibly until he told about the Spencer mur­der, which was about 8:30 Saturday night I  believe. Figure it up.Q. Talking about the signed confession, that was at 11 o’clock.A. 11:45.Q. That does not miss 56 hours very far?A . I  don’t know.



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Q. You were using that persuasion all the time you had him there?A. I  don't know .just what you mean by persuasion. You keep harping on “ persua­sion” —I don’t know what you mean. I  had the negro in there for the purpose of trying to get him to tell the truth about three mur­ders. I  didn’t bring him in there to try to keep him from telling the truth.Q. What you thought was the truth was to have him confess he committed these murders?A . I f  he committed them I  wanted him to confess; he finally told the truth.
Q. Did you frame the answers to those confessions?A . No, sir; he framed them himself. With the exception of the last paragraph in both statements “ I  make this statement freely, vol­untarily, with the understanding it can be used as evidence against me in court.”  I  dictated that myself and had him read it over. But the questions and answers are my language and his.Q. The questions your language and the answers his?A . Yes sir.Q. That is absolutely correct?A . Yes sir.Q. And none of those answers are in your



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words and language besides the ones you men­tioned ?_ A . I  would not say—to boil it down that fine—He may have gotten confused on some­thing and I  would suggest that “ How does this sound,” —then let him repeat that to me. Now do you get what I  mean?Q. Exactly what you mean—let’s see if I  do. You say upon some questions you asked him if he became confused—A . Not exactly confused—but his language was such it would be confusing to the Court or jury; and then I  would suggest—Charley, was this the way,”  and he would repeat it, and repeat in his own language.Q. You would say “ Charley was this the way”  and read an entire statement?A . No sir; that was before the sentence was written Mr. Creasy.Q. I  know, but you would call off to him a sentence to him?A . Yes sir.Q. Yes sir.Q. And he would say that it was so.A . Yes sir.Q. Thereafter you wrote it in the state­ment?A . Yes sir; only in a few instances.



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Q. About how many instances of that kind would you say is in this Obe Spencer con­fession!A. In both confessions, the three murders.Q. Yes sir!A . I  would say that didn’t happen over half a dozen questions.”Inspector Griffin admitted he had defendant there for the purpose of getting a statement or con­fession from him before he had a right to talk to counsel or anyone else.Beginning on page 170 of the transcript:“ Q. Why did you refuse Mr. Van Fossan and Judge Puryear entrance?A . That was the first thing—I  didn’t want Judge Puryear to come there telling the negro to keep his mouth shut.Q. You wanted to defeat this negro of the right to have counsel?A . No sir; I  didn’t want to defeat this negro’s right to have counsel; but I  wanted a chance to intelligently investigate these three murders; and I  knew the first opportunity Judge Puryear had he would tell the negro to keep his mouth shut and leave three mur­ders unsolved.Q. You knew that he should have counsel?A . Yes sir.



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Q. It was your purpose to get the three statements before he had an opportunity to see counsel?A . No sir, I  wanted a chance to intelligently investigate without having the attorney come in and tell the negro to keep his mouth shut.Q. What do you mean by an intelligent in­vestigation?A . I  wanted to talk to the negro and find out what he knew.Q. To get a statement what he knew about it before he had the right to talk to a lawyer?A . Before he had the right to talk to any­body; I  want to say in this connection, I think any means employed-—if it is fair in getting at the truth in any crime, is not only justified but demanded.Q. Any means that is fair?A . That is fair.Q. The fairness of those means rests en­tirely Avith your office?A . I  don’t say that.Beginning on page 178 of the transcript.“ Q. Now you say that you had Charley Barr there and that you had certain circum- . stantial evidence,—to-wit: a pistol, a watch and a ring. Did you keep him there for the sole purpose of getting some statement out of him with reference to those things and their con­nection with the murder of Obe Spencer be-



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fore you allowed him to see counsel or anybody else,—do you answer that yes?A. Yes sir. ’ ’Inspector Griffin admitted that he allowed de­fendant to sleep with his wife, and that he was given food immediately after he signed the alleged statement of confession.

Beginning on page 394 of the transcript :“ Q. And didn’t they tell him chief, if he signed the statement that he would be per­mitted a privilege no other prisoner had been permitted,—and that was to sleep with his wife?A . No sir.Q. Was he permitted to do that?A . Yes sir. That was afterwards—after the confession was signed; and Charley had been talking to different people there in the room, including Judge Davis, Mr. Kahn and others and he had eaten his supper, I  said, Charley, do you feel better? He said, I  do. I  said, is there anything else you want? He said: I  would like to go upstairs where I  could talk to my wife. I  said: all right, you can do that. And we let him do that.Q. But you did permit him to go upstairs in the cell with his wife?A . Yes sir; I  didn’t take him up there my­self ; that was my instructions to the detectives.



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Q. And that was permitted?A . After the confession had been signed— two confessions had been signed. No mention of that was made up until that time and for several minutes afterwards.Q. But that was permitted after the con­fessions were signed?A . Yes sir.”Inspector Griffin also admitted that he framed a part of defendant’s answers in a written state­ment or confession introduced in evidence.Beginning on page 167 of the transcript, in the absence of the .jury“ Q. Did you frame the answers to these confessions?A . No sir; he framed them himself. With the exception of the last paragraph in both statements “ I  made this statement, freely, vol­untarily, with the understanding it can be used as evidence against me in Court.”  I  dictated that myself and had him read it over. But the questions and answers are my language and his.Q. The questions your language and the answers his?A . Yes sir.Q. That is absolutely correct?A . Yes sir.



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Q. And none of those answers are in vour words and language besides the ones you men­tioned fA. I  would not say—to boil it down that fine—He may have gotten confused on some­thing and I  would suggest that “ How does this sound,” —then let him repeat that to me. Now, do you get what I  mean?Q. Exactly what you mean, let’s see if I do. You say upon some questions you asked him he became confused—A . Not exactly confused, but his language was such it would be confusing to the Court or jury; and then I  would suggest—Charley was this the wav,” —and he would repeat it, and repeat in his own language.Q. You would say “ Charley was this the way”  and read an entire sentence?A . No sir; that was before the sentence was written, Mr. Creasy.Q. I  know, but you would call off to him a sentence to him?A . Yes sir.Q. And he would say that it was so.A . Yes sir.Q. Thereafter you wrote it in the state­ment ?A . Yes sir; only in a few instances.Q. About how many instances of that kind



Ill

would you say is in this Obe Spencer con­fession fA . In both confessions, the three murders.Q. Yes sir?A . I  would say that didn’t happen over half a dozen questions.”Sergeant Quianthy testified that defendant had to give him a satisfactory explanation of how he came into possesion of the ’watch in question.Pages 527, 528, and 552 of the transcript“ Q. Were you just going to him and keep after him until he would make a certain ex­planation to you of how he came in possession of this stolen property, the watch and pistol!, . w*A . To all of my intentions he had to makean explanation of how he came into possession of this stolen property, the watch and pistol.Q. A  certain explanation to you!A . Yes sir.Q. And you were going to hold him until he made a certain explanation?A . I  wasn’t going to hold him. I  begged him to tell me how he came in possession of this watch. That was my motive.Q. And when he told you he killed Obe Spencer, and he killed Miss Tucker and he killed Duncan Waller, that was sufficient ex­planation for you, and it was a certain ex-



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planation to you of how he came into pos­session of all this stolen property?A, He told me how he took the watch off of Miss Laura Wheaton Johnson, and then I was certain how he took it.

*  # # *  *Q. You were going to keep this man there until he made a certain explanation of how he got this stolen property?A . I  was going to talk to him until I  felt that he would tell me about it, the truth about it, and he would tell me how he came in pos­session of the watch. That is the particular point that I  wanted.Q. And that was finally done by getting a confession out of him involving him in the killing of Duncan Waller and Miss Ruth Mc- Ilwain Tucker and Mr. Obe Spencer and the shooting of Miss Laura Wheaton Johnson, didn’t it?A . He admitted to that; yes sir, he con­fessed it.Q. And that was the satisfactory explana­tion that he made to you?A . He made a satisfactory explanation to me when he told me how he took the watch off of Miss Laura Wheaton Johnson’s arm.* * * # #Q. Now you say you wmnt down to Lipp- man’s Loan office on Saturday night about 7 or 7 :30 o ’clock?A . Yes sir.



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Q. And about the ring, or the pawn ticket, they were both together?A . Yes sir.Q. What time did you get back to the police station ?A . I  don’t know the exact time, but it was after 8 o ’clock.Q. It was after 8 o ’clock.A . I  think so to the best of my remembrance.Q. And you brought the ring in?A . Yes sir.Q. Up to that time you had—you had not had the ring at all. That was the first time you got possession of the ring?A. That night, yes sir.Q. And you brought that into the police station when you got back from the loan office?A . Yes sir.Q. When you got back at 8 o ’clock or a little after 8, according to your testimony, were you greeted with the news that Charley Barr had confessed to the murder of Obe Spencer and these people?G E N . M cL A IN : I f  your Honor please, unless he happened to hear the statement it wouldn’t be competent. It would be hearsay.T H E  CO U R T : He can ask him whether he knew it or not.



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Q. I  asked you if you were told when you came back to the station, having brought the ring in with you, that Charley Barr had con­fessed?A . Sometime a little later on, I think it was later.Q. Had you gone into Chief Griffin ’s of­fice?A . I don’t think so up to that time.Q. What?A . I  don’t think so up to that time, I  met him in another room.Q. And ypu were in another room and somebody told you he had confessed?A . That he was confessing at the time. ’ ’Mr. Bailer, State’s witness, one of the first and few outside parties to see the defendant, testified that defendant was very nervous and excited dur­ing the time he was interrogated by the police of­ficers.Beginning on page 467 of the transcript :“ A . Everytime I  would ask a question he would say that he bought it at Bailers, and I  knew he was lying because we would have had a record of it, and we don’t do business on time. He was very nervous and highly excited and from time to time he would say, Oh! Lordy; Oh, Lordy.”



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Q. What else was said!A . I  told him he might as well tell the truth because it was only a question of time before it would come out, that they would find out sooner or later, and he said he got the watch from a negro on Beale Street. He changes suddenly, I  think the man’s name was Eska May Hays.# # * # *Q. This question, if you please. Did you tell Charley Barr that it would be a lot better for him to come clean and tell the truth about it and to make a confession if he was the one!A . I  told him to tell the truth, it would be better for him to get it out of his system.Q. Did you hear Chief Griffin tell him that?A . I  did not.Q. Did you hear Mr. Quianthy tell him that ?A. Nobody talked to him while I  was there but Chief Griffin and myself.Q. What did Chief Griffin tell him?A . He asked him where he got the watch, and then after he changed and quit saying he got it from me he said he got it from a negro on Beale Street. Inspector Griffin said, “ You told Mr. Bailer a lie, and how do we know you are telling the truth now,”  and he said, “ I  am not going to find this negro because if I  did bring him here he would tell me the truth”  and



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when I  left there he was saying he got it from Eska May Hays, when I  left.Q. Chief Griffin did tell him that he wouldn’t look up the negro he said he got the watch from?A . Yes sir.Q. Because he was telling him a lie ?A . Yes sir.There is not a line of evidence in the entire rec­ord which tends to show that the statement or con­fession alleged to have been made by defendant was freely, voluntarily, and deliberately made. De­fendant was placed on the defensive from the moment he was carried to the police station.Every persuasion was used and every inducement made to secure a confession.The length of time required to secure this con­fession alone is sufficient to show that it was not given freely and voluntarily.Not only did the State fail to prove that this alleged statement or confession was freely, vol­untarily and deliberately made, but its own proof shows conclusively that it was not. The State all the way through admits that defendant confessed against his will and that he did everything in his power to keep from confessing. Its only insistence in the trial Court was that the police officers did not use physical violence.



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The law relative to the admissibility of an al­leged confession in evidence before a jury is fairly well settled. There is very little difference of opinion that we have been able to find in the authorities.We will quote from a few text books and opin­ions so that the Court will bear in mind the lan­guage used both by writers of text books and judges in opinions in cases of this character.“ Before a confession, either judicial or ex­tra judicial, can be received as such, it must first be shown that it was in every respect freely and voluntarily made. This means that the confession must not be obtained by any sort of threat or violence, nor by any promise, either direct or implied, however slight the hope or fear produced thereby, nor by the exertion of any influence.”Underhill on Criminal Evidence, Sec. 217, citing the following cases:McAlpine vs. State, 117 Ala., p. 93.Saulsburv vs. State, 178 Ala., p. 16.Greenwood vs. State, 107 Ark., 568.People vs. Sato, 49 Calif., p. 67.Reagan vs. People, 49 Colo., p. 316.State vs. Castelli, 92 'Conn., p. 58.Smith vs. State, 88 Ga., p. 627.Walker vs. State, 136 Ind., p. 663.State vs. Thomas (Iowa), 188 N. W .., p. 689.Pearsall vs. Commonwealth, 29 K y., p. 222.State vs. Berry, 50 La. (Ann) 1309.Watt vs. State, 99 Md., p. 30.



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Commonwealth vs. Pearce, 140 Mass., 276.People vs. Brash, 193 N. Y ., p. 46.Fowler vs. State, 71 Tex., Cr. 1.“ Voluntary is not always used in contradis­tinction to compulsory. In many cases volun­tary means proceeding from the spontaneous operation of the party’s own mind, free from the influence of any extraneous disturbing cause.”People vs. McMahon, 15 Ivy., p. 384.State vs. Bohannon, 142 N. C., p. 695.“ A  confession is involuntary if obtained through playing upon emotions.”Underhill on Criminal Evidence, Sec. 218, citing,Hawkins vs. State, 6 Ga. Appeals, p. 109.State vs. Lee, 107 La., 1077.People vs. Prestege, 182 Mich., p. 180.“ A  confession is involuntary if obtained through persistent questioning and fright.”Underhill on Criminal Evidence, Sec. 218, citing:People vs. Quan Gib Gow, 23 Calif., App., 507.“ It is very difficult, if  not impossible, to lay down any general rule by which the amount or degree of duress or improper influenec which will destroy the voluntary character of a confession can be regulated or measured. A  defendant in custody is entitled to confer with his attorney, and where an officer ob-



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tains a confession from one in Ms charge after the defendant demands and is refused com­munication with his attorney, such confession is not admissable.Underhill on Criminal Evidence, Sec. 220, Citing:Pritchard vs. State, 62 Tex. Cr. p. 602.“ So it has been held that a confession made in reply to the charge by a police officer that the accused has been lying to him and that he had better tell the truth is inadmissible.”Underhill on Criminal Evidence, Sec. 220, Citing: West vs. U. S., 20 App. I). C., 347.“  W E IG H T  OF C O N F E SSIO N S. But here, also, we have before remarked in regard to ad­missions, the evidence of verbal confessions of guilt is to be received with great caution. For besides the danger of mistake, from the mis­apprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory, it should be recollected that the mind of the prisoner himself is oppressed by the calamity of his situation, and that he is often influenced by motives of hope or fear to make an untrue confession. The zeal, too, which so generally prevails, to detect offenders, especially in cases of aggravated guilt, and the strong dis­position, in the persons engaged in pursuit of evidence, to rely on slight grounds of sus­picion, which are exaggerated into sufficient proof, together with the character of the per­sons necessarily called as witnesses, in cases of secret and atrocious crime, all tend to im-



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pair the value of this kind of evidence, and sometimes lead to its rejection, where, in civil actions, it would have been received. The weighty observation of Mr. Justice Foster is also to be kept in mind, that this evidence is not, in the ordinary course of things, to be disproved by that sort of negative evidence, by which the proof of plain facts may be, and often is confronted.”Greenleaf on Evidence, Vol. 1, Sec. 214.“ V A L U E  O F C O N F E S S IO N S : E X P L A ­N A T IO N  O F C O N F L IC T IN G  O PIN IO N S. But, it may be asked, even after eliminating all these explanatory considerations of an ex­trinsic nature, are there not, after all, inherent weaknesses in confessions, even under the most favorable social conditions, which should in­duce their exclusions on grounds of caution? I f  not, how do we account for the repeated utterances of the best authorities pointing out the dangerousness of accepting confessions and urging great caution? Does not this opinion count for something?It is true that there exists a decided con­flict of opinion, at first sight inexplicable, as to the evidential value of confessions. On the one hand, we find writers and judges of wide experience affirming the slender value of con­fessions and urging the greatest caution in their use; some of these declarations, however, being merely the reproduction of a classical predecessor’s language. On the other hand, we find persons of equal authority offering in equally positive and unqualified language ■hat confessions are the highest kind of evi-



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denee. There must be some keĵ  to this con­flict. How plausible each side of the contro­versy is, and how forcible the impression its influence may produce for the moment, ap­pears when we see the same judge—Sir Wil­liam Scott (Lord Stowell)—in almost the same year expressing opinions diametrically opposed.Of course a partial explanation is—as Mr. Jo y  has observed—that confessions vary in value according to the circumstances in which they are made. Some are clearly trustworthy; others are worthless. This will account for the hasty indignation or the favorable com­ment which a judge might express in general terms when he had in mind only the concrete instance of weak or strong evidence that hap­pened to be before him. But it hardly ex­plains the constant use of general terms of satisfaction or disapproval by the representa­tives of both views.The real explanation lies in the mixture of good and bad qualities likely to be present in all attempts to use confessions, We must separate (1) the confession as a proved fact, from (2) the process of proving an alleged confession. (1) Now, assuming the making of a confession to be a completely proved fact—its authenticity beyond question and con­ceded—then it is certainly true that we have before us the highest sort of evidence. The confession of a crime is usually as much against a man’s permanent interests as any­thing well can be; and, in Mr. Starkie’s phrase, no innocent man can be supposed ordi­narily to be willing to risk life, liberty, or



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property by a false confession. Assuming the confession as an undoubted fact, it carries a persuasion which nothing else does, because a fundamental instinct of human nature teaches one of us its significance. (2) But how do we get to believe in the fact of a confession having been made? Always and necessarily by some­body’s testimony. And what is our experience of that sort of testimony on which we are asked to believe that a confession was made? A  varying and sometimes discouraging ex­perience. Paid informers, treacherous asso­ciates, angry victims, and overzealous officers of the law,—these are the persons through whom an alleged confession is often, perhaps oftenest, presented; and it is at this stage that our suspicions are aroused and our caution stimulated. Suppose a judge is offered from the lips of a single witness a detailed and com­plete avowal of guilt, attributed to the ac­cused, and suppose the accused denies abso­lutely the fact of confession; suppose the judge now thinks to himself, “ Here is a confession which, if authentic, would make this man’s guilt clear beyond a doubt. But do you ex­pect us to take it as authentic, against his de­nial, on the word of this man alone, who has such and such strong motives for inventing it or for misinterpreting what was said? Must we not listen to him with the greatest doubt and suspicion?”  Then, would it not be natural for the judge, in commenting on such evidence to the jury, to say: “ What you have heard here from, this man about a supposed confes­sion is to be taken with caution; for that is the weakest and most suspicious kind of evi­dence?”  This is a natural and proper atti-



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tude, and it is precisely that of the authorities above quoted. They were thinking, not of the confession as evidence of the act, but of the testimony to the alleged confession. Take, for instance, the phrase above of Mr. Justice Fos­ter’s which has been quoted again and again (with and without acknowledgment) in the records of the profession for a century and a half, in the mangled and misleading form “ confessions are the weakest and most suspi­cious of all evidence.”  Why did he so regard them? Not because of their own evidential weakness; but for the following reasons:‘ Proof may be too easily procured; words are often misreported—whether through ig­norance, inattention, or malice it mattereth not to the defendant, he is equally affected in either case; and they are extremely liable to misconstruction; and withal, this evi­dence is not in the ordinary course of things to be disproved by that sort of negative evi­dence by which the proof of plain facts may be and often is confronted.’In other words, the suspicion that he has found it necessary to entertain is directed entirely to the work of proving an alleged con­fession. This is the reason above suggested as the real cause of the distrust; we are ready enough to trust the confession if there really was one, but we are going to doubt and sus­pect for a long time before we accept it as a fact. Mr. J .  Erie touched the kernel of the subject when he said: “ I  am of opinion that when a confession is well proved, it is the best evidence that can be produced.”  Furthermore,



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it is precisely because the confession, if a fact, is so weighty and produces such a close ap­proach to complete persuasion, that we are in­clined to hesitate and demand the most satis­factory testimony before we accept that as a fact which, if believed, will practically render other evidence superflous.This seems to be the simple explanation of the apparently contradictory views; if we dis­tinguish the confession as evidence from the evidence of the confession, we find that few have ever really doubted that the first is in itself of the highest value, while the second is always to be suspected. The moral is that the proper course lies, not in distorting the legitimate principles of confession law, but in exacting more, in the way of quantity or qual­ity, of the testimony by which alleged con­fessions are presented.”Wigmore on Evidence, Vol. 1, See. 866.-A confession obtained after the prisioner was told, it would be worse for him if he did not con­fess; or that it would be better for him if he did confess, has been held to be involuntary.“ The first question for our consideration is was the confession of the prisoner—-which was objected too—properly admitted as evi­dence to the jury? This is a question which admits of no discussion. A ll the authorities concur, that a confession, to be admissible as evidence, must have been freely and volun­tarily made, and not under the influences of promises, or threats. As to what is such a



promise, or threat, as will exclude a confession, it is laid down, that saying to a prisoner, it will be the worse for him if he do not confess; or, that it will be better for him if he do, is sufficient to exclude the confession. 2 East P. C. 659. So, where a surgeon called to see a prisoner charged with murder, said to her, ‘you are under suspicion of this, and you had better tell all you know’, the confession was held inadmissible. 4 C. and P. 387. So where it was said to the prisoner, ‘ it would have been better if you had told at first,’ the con­fession was rejected. 6 C. and P. 175. It would be a useless labor to multiply authori­ties upon a point in respect to which there is no substantial disagreement to be found in the books. Nor would it be more profitable to in­dulge in speculation as the probable influence of such a promise, or threat, in a particular case! certainly not in the case of a timid girl, of tender age, ignorant and illiterate, a slave and in chans, whose life had been threatened by her master, and against whom the hand of everyone, even those of her own color and con­dition, seems to have been raised. In such case, and in all cases, the law presumes, and conclusively presumes, that an influence was exerted upon the mind of the prisoner, and, therefore, all inquiry upon the subject is pre­cluded.”Ann. vs. State, 11 Humph. 159.“ A  confession in order to be admissible in evidence must, be free from all suspicion of having been obtained by any threats or sever­ity, or promise of favor, and of every influ­ence, even the minutest, having been exercised



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over the mind of the person in order to intro­duce a disclosure.”7th Tenn., 140.“ Such testimony of confession, it is true, should be free from all suspicion of having been extracted by any the least influence used for the purpose, but here she wished to con­fess, and is going out of doors with Mrs. Chissum to speak to her on the subject before the rude voice from the interior of the house was uttered, and she was not otherwise ad­vised to a disclosure by Mrs. Chissum, except to tell the truth, after she had said voluntarily she would do so.”“ In relation to evidence of confessions it is proper upon this occasion to say, in general, that it is liable to a thousand abuses. They are made by persons generally under arrest, in great agitation and distress, when each ray of hope is eagerly caught at, and frequently under the delusion, though not expressed, that the merit of a disclosure will be productive of personal safety. Can a confession be meant as a weapon to be wielded for the destruction of the one who makes it? I f  not, it is decep­tion to use it, and against the understanding of the person who made it. It is a breach of confidence at all times, odious by the common consent of mankind, and the more so when used to the injury of the person confiding in the honor of him with whom the deposit was made, and if thus unamiable in its introduction it gains but little on further acquaintance.”“ Confessions are made by persons for whom



humanity can not feel; in distress, in want of advisers, deserted by the world, in chains and degredation, their spirits sunk, fear predomi­nant, hope fluttering around, purposes and views momentarily changing, a thousand plans alternating, a soul tortured with an­guish, and difficulties gathering into a multi­tude. H owt uncertain must be the things which are uttered in such a storm of the passions. And this is not all; how easy it is for the hearer to take one word for another, or to take a word in a sense not affixed to it by the speaker. And for want of an exact, repre­sentation of the time of voice, emphasis, coun­tenance, eye, manner and action of the one who made the confession, how almost impossible is it to make third persons understand the exact state of the mind and meaning of the one who made the confession. For these reasons, evi­dence of confession, though admissible, is yet received with great distrust, and under the superintendence of the very solicitous ap­prehension for the wrong it may do. The ad­missibility is made to depend on its being free from all suspicion of having been obtained by any threats of severity or promise of favor, and of every influence, even the minutest, hav­ing been exercised. Phil on Evidence, 50, 1 Chitty, 85; 1 Leach, 203; 4 B. C. 357; 1 Chitty, 571. This latter consideration makes neces- sary a scrupulous examination of the circum­stances which may be recurred to in proof of influence used to obtain confessions. And it is the opinion of this Court, who will not say that the testimony of Mrs. Chissum shall be re­jected, that whenever it shall be offered it may be examined with the anxiety just mentioned.



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and, wlien submitted to the jury, be accompa­nied with observations which in legal contem­plation characterize it. And it is the opinion of this Court that testimony should in sound dis­cretion be inquired into with a view to its com­petence, and rejected rather before it is stated to the jury by the witness than afterwards, for fear of impressions which cannot be effaced, after the evidence shall be decided to be in­competent and improper for the jury to hear.”State vs. Field, 7 Tenn., p. 141.One of the strongest recent opinions thoroughly discussing every phase of the admissibility of an extra-judicial confession that we have been able to find was rendered by this Honorable Court on April 29, 1922. The Case of Williamson and Flatt vs. State, from Davidson County, the opinion being rendered by Mr. Justice McKinney.A  confession in that case was forced from the defendant Flatt by threats, and from defendant Williamson through the actual use of force and violence, very much similar to the circumstances under which the defendant in the case at bar claims he was forced to confess.Speaking again and particularly with reference to the burden of proof, the Court said:“ Upon an analysis of the State’s Evidence, we find no testimony tending to show that this confession was freely and voluntarily made, and the burden was upon the State to show this. The only evidence upon this question are



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the statements of officers Eagan and Patton that the confession was made voluntarily, which is a mere conclusion, as they testified to no facts and circumstances as a basis for such conclusion.”Williamson and Flatt vs. State supra.Speaking particularly with reference to the rights of accused persons when confessions are sought, the Court said:“ The Legislature, by statute, has provided certain protections for persons accused of crime, in that it is made incumbent in com- mital trials for the magistrate to inform the accused of his rights; that he is entitled to the aid of counsel; that any statements or admis­sions made by him can be used against him in the Circuit Court, and that he can make a statement about the case, but that his failure to do so cannot be used against him.It would be contrary to this principle of jus­tice to permit officers to imprison suspects and extort from them confessions without in­forming them of their rights. In a number of states statutes have been passed prohibiting convictions on uncorroborated confessions.”Williamson and Flatt vs. State, supra.And finally, the court said:“ In the absence of other facts and circum­stances connecting the defendants with the crime this Court will not permit a conviction to stand on confessions made to officers where



defendants were in prison and without counsel or friends to advise them, and without being appraised of their rights, unless the Court can clearly see that such confessions were freely, voluntarily and deliberately made.”Williamson and Flatt vs. State, supra.On October 13, 1924 the day before the defendant in the case at bar was put upon his trial in the Criminal Court of Shelby County, Tennessee, the Supreme Court of the United States speaking through Mr. Justice Brandies rendered an opinion in the case of United States vs. Ziang Sung Wan, directly applicable to and as we submit decisive of the case at bar.
In order that the Court may more fully have before it the marked similarity of the Wan Case and the Case at bar and to have full benefit of the details of the Wan Case, we ask the Court to read the opinion of the Circuit Court of Appeals re­ported in,289 Federal, at page 908.In the Wan case the defendant was made to con­fess to officers through persistent, lengthy and re­peated cross-examination. It was not contended by defendant that his confession was induced by any promise or threat or by violence. The Court held that the requisite of voluntariness was not satisfied by establishing merely that the confession was not induced by a promise or a threat, and that



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a confession is voluntary in law if, and only if, it was, in fact, voluntarily made.In view of the fact that the circumstances of that case were very similar to the facts, as ad­mitted by the State in the case at Bar, we are in­serting the entire opinion of the Court:“ On January 31, 1919, the police department of the District of Columbia learned that three Chinamen, the inmates of a house in Washing­ton occupied by the Chinese Educational Mis­sion, had been murdered. They were known to have been alive late in the evening of Ja n ­uary 29. Police officers were told by Li, a stu­dent, that, earlier on the same evening, he had seen at the Mission a resident of New York City named Wan. Acting under the instruc­tions of the superintendent of police, two de­tectives started immediately for New York, taking Li with them. On February 1, they entered W an’s room in a lodging house, found him there, and brought him to Washington. He was not formally arrested until February 9. Later, he was indicted, in the supreme court of the District of Columbia, for the mur­der of one of the Chinamen; was found guilty; and was sentenced to be hanged. The Court of Appeals of the District affirmed the judgment. 53 App. D. C. 289 Fed. 908. A writ of certior­ari was granted. 263 U. S. 693, 68 L . ed.—, Adv. Ops. p. 17, 44 Sup. Ct, Rep. 34.The main question for decision is whether, on the facts disclosed in the testimony of the superintendent of police, three detectives, and



the chief medical officer of the jail, the trial court erred in admitting as evidence state­ments made by the defendant to the police of­ficers before and shortly after his formal ar­rest. Four of the statements were oral. These if admissible, were important evidence. The fifth was a stenographic report of an inter­rogation of the defendant, conducted by the detectives, after the arrest. This report con­tained a full confession. The introduction of each of the statements was duly objected to on the ground that the government failed to show that it had been voluntarily made, and that, from the testimony of its own witnesses, the contrary appeared. The court admitted the statements. It later charged the jury: “ The test of the case, and the inquiry that you will have to make in answer, is: Did the question­ing, if you choose to call it so, render the con­fession made bv the defendant not his own; but did it substitute for his will the will of an­other, and thus was it or not his voluntary act?”Wan was a native of China. He had come to the United States in 1916, at the age of twenty-two, as a student. In 1918, he engaged in a business which proved unsuccessful. Since December of that year, or earlier, his health had been bad. He had an attack of Spanish influenza. He suffered continuously from a chronic stomach trouble which led him to eat sparingly and irregularly. When the detec­tives entered his room unannounced they found him in bed. They had no search war­rant, but they made a search of the room and his effects, including the bed in which he lay.



They were accompanied by a New York police officer, but they did not arrest Wan. They requested that he return with them to Wash­ington. He told them he was too sick. Li, who had been left waiting outside the closed door and was called in, told Wan that both of them were suspected of the murder. Then Wan con­sented to go with the detectives to Washington.On arrival in Washington, Wan was not put formally under arrest, but he was taken to a secluded room. In the presence of three de­tectives, the superintendent of police, and Li, he was subjected there to questioning for five or six hours. Late in the evening of that first day, the detectives took him to Hotel Dewey; and, without entering his name in the Hotel registry, placed him in a bedroom on an upper floor. In that room he was detained continuously one week. Throughout the per­iod, he was sick, and, most of the time, in bed. A  physician was repeatedly called. It was a police surgeon who came. In vain Wan asked to see his brother, with whom he lived in New York, who had nursed him in his illness, who had come to Washington at his request, in Ja n ­uary, who had returned with him to New York, and whom, as he later learned, the detectives had also brought to Washington, were detain­ing in another room of the hotel, and wTere subjecting to like interrogation.Wan was held in the hotel room without for­mal arrest, incommunicado. But he was not left alone. Every moment of the day and of the night, at least one member of the police force was on guard inside his room. Three ordinary policemen were assigned to this duty.



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Each served eight hours; the shifts beginning at midnight, at eight in the morning, and at four in the ■ afternoon. Morning, afternoon, and evening (and at least on one occasion after midnight) the prisoner was visited by the superintendent of police and one or more of the detectives. The sole purpose of these visits were to interrogate him. Regardless of W an’s wishes and protest, his condition of health or the hour, they engaged him in con­versation. He was subjected to persistent, lengthy, and repeated cross examination. Sometimes it was subtle, sometimes severe. Always the examination was conducted with a view of entrapping Wan into a confession of his own guilt and or that of his brother. Whenever these visitors entered the room, the guard was stationed outside the closed door.On the eighth day, the accusatory question­ing took a more excruciating form. A  detec­tive was in attendance throughout the day. In the evening, Wan was taken from Hotel Dewey to the Mission. -There, continuously for ten hours, this sick man was led from floor to floor minutely to examine ,hnd reexamine the scene of the triple murder'and every objected connected with it, to give explanations, and to answer questions. f/The places where the dead men were discovered; the revolver with which presumably the murder was committed, the blood stains and the finger prints thereon; the bullet holes in the walls; the discharged cartridges found upon the floor; the clothes of the murdered men; the blood stains on the floor and stairs; a bloody handkerchief; the coat and pillow which had been found covering the dead men’s faces; photographs, taken by



the police, of the men as they lay dead; the doors and windows through which the mur­derer might have entered or made his escape; photostat copies of writings, by means of which it was sought to prove that Wan was implicated in a forgery incident to the murder; all these were shown him. Every supposed fact ascertained by the detectives in the coursg, of their investigation was related to him.^Con- cerning every object, every incident detailed, he was, in the presence of a stenographer, plied with questions by the superintendent of police and the detectives. By these he was engaged in argument; sometimes separately, sometimes in joint attack. The process of interrogation became even more insistent. It passed at times from inquiry into command. From 7 o’clock in the evening until 5 o ’clock in the morning the questioning continued. Be­fore it was concluded, Li, who was again in attendance, had left the Mission about mid­night, worn out by the long hours. The super­intendent of police had returned to his home, apparently exhausted. One of the detectives had fallen asleep. To Wan, not a moment of sleep was allowed.On the ninth day at 20 minutes past 5 in the morning, Wan was taken from the Mission to the station house and placed formally under arrest. There, the interrogation was promptly resumed. Again the detectives were in atten­dance, day and evening, plying their questions; pointing out alleged contradictions; arguing with the prisoner; and urging him to confess, lest his brother be deemed guilty of the crime. Still the statements secured failed to satisfy the detectives craving for evidence. On the



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tenth day, Wan was “ bundled u p ;”  was again taken to the Mission; was again questioned there for hours; and there “ the whole thing was again talked of and enacted.”  On the eleventh day, a formal interrogation of Wan was conducted at the station house by the de­tectives in the presence of a stenographer. On the twelfth day, the verbatim typewritten re­port of the interrogation (which occupies twelve pages of the printed record) was read to Wan, in his cell at the jail. There, he signed the report and initialed each page. On the thirteenth day, for the first time, Wan was visited by the chief Medical officer of the jail, in the performance of his duties. This ex­perienced physician and surgeon testified, without contradiction, to the condition of the prisoner:‘ He f o u n d ........................ Wan lying in a bunkin the cell, very weak, very much exhausted, very much emaciated; he complained of ab­dominal pain, which was rather intense. He told witness, and witness afterwards saw, that he vomited if he attempted to take food; that it was difficult or impossible for his bowels to move unless they were assisted by an enema; witness thought he was very seriously ill; . . . ordered certain tests by the labo­ratory . . . .had his blood examined andhis abdomen X-rayed and had him removed from the cell to the Red Cross room; . . .concluded he was suffering from spastic colit­is; (involving contradiction of the bowels) .. . .The result of that contradiction wouldbe almost constant pain, excited by any fur­ther additions to contents of the tract at that point, and vomiting and persistent constipa-



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tion........................ Witness knows defendant wasin bed at least a month after his treatment was prescribed. From Witness’ observation and medical experience, judging from the de­fendant’s emaciation and history he gave wit­ness, and his condition generally, would say that when witness saw the defendant on Feb­ruary 13th he had been ill for a matter of weeks. . . . He told me he had been talkedto all one night and had not received any med­ical attention, and had been in constant pain all this time and had been unable to eat fox- days; and, considering all these facts, I  came to the conclusion that he was so exhausted that he was really—he told me also that he had signed a confession.’Then the witness was further questioned by the court.Question. You thought he was so exhausted mentally that he would not know what he was signing.Answer. He would know what he was sign­ing, yes.Question. Would he be liable to sign a con­fession that would lead to the gallows in that condition?Answer. I  think he would, if he wanted to be left alone.Question. With spastic colitis, if he was ac­cused of crime he would simply sign a paper and say, “ You hang me?”  That is your opin­ion as a medical man?



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Answer. I  say, if he was as sick as that and in as great pain as that, he would do anything to have the torture stopped.The Court of Appeals appears to have held the prisoner’s statements admissible on the ground that a confession made by one compe­tent to act is to be deemed voluntary, as a matter of law, if it was not induced by a prom­ise or a threat; and that finding of fact that these statements were not so induced. In the Federal courts, the requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat.A  confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A. con­fession may have been given voluntarily, al­though it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded, whatever may have been the character of the compulsion, and whether the compulsion was applied by a judi­cial proceeding or otherwise. Bram v. United States, 168 U . S. 532, 42 L. ed. 568, 18 Sup. Ct. Rep. 183, 10 Am. Grim. Rep. 547. None of the five statements introduced by the gov­ernment as admissions or confessions was made until after Wan had been subjected for seven days to the interrogation. The testi­mony given by the superintendent of police, the three detectives, and the chief medical of­ficer, left no room for a contention that the statements of the defendant were, in fact, vol­untary. The undisputed facts showed that compulsion was applied. As to that matter



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there was no issue upon which the jury could properly have been required or permitted to pass. The alleged oral statements and the written confession should have been excluded.Reversed.”

The opinion by the Supreme Court of the United States above quoted is on all-fours with the case at Bar.Chief Griffin, chief of detectives of the City of Memphis, was really the judge who tried Charley Barr. When this watch appeared, Chief Griffin decided in his own mind that Charley Barr was guilty. He had no evidence upon which a convic­tion could stand or to incriminace Charley Barr, a id he set about to convict Charley Barr by securing a sworn statement or confession from him. He violated every law in the books relative to voluntary confessions; and he violated every canon of de­cency and humanity in securing it. He used guile, chicanery, and hypocrisy in securing it. He played upon this Negro’s inherent and prenatal supersti­tious nature in securing it. He focused the dead man before the eyes of Charley Barr. Placed the dead man’s collar around his neck took him in the night time across the scene of the murder, placed the ghost of the dead man before him.A ll of these things he did to secure a confession from defendant. Alas! A  voluntary confession from Charley Barr.



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We submit that the Wan ease, supported by other authorities cited, is decisive of this case.In addition to what has been said heretofore, we submit that the Court further erred in allowing this confession to be introduced in evidence before the jury against this defendant, upon the ground that under the testimony this confession was secured in violation of and contravention to the rights of this defendant in' enuring to him under the constitution of the United States.Articles 5 and 6 being in addition to and amend­ments of the Constitution of the United.States, rati­fied by the Legislatures from the several States pur­suant to the fifth article of the original constitu­tion, are couched in the following language:“ Article 5:—No person shall be held to an­swer for a capital or other infamous crime un­less on a presentment or indictment of a grand jury. * * * * Nor shall any person, besubject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or prop­erty without due process of law.Artisle 6 :—In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State or District wherein the crime shall have been committed. * * * #, and to be informedof the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process of obtaining witness-



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es in his favor, and to have the assistance of counsel for his defense.”This defendant’s rights under these articles of the Constitution were ruthlessly violated by the Police Department of the City of Memphis in secur­ing this confession from Charley Barr, in that, in the first instance, and under the first of these arti­cles, Charley Barr was forced and compelled, in the forms and manners aforesaid, to be a witness against himself, and to give a sworn statement in the nature of testimony against himself.In other words, he was forced against his will, by the police authorities to confess himself guilty of this crime, by making a forced sworn statement of his guilt. After this confession was forced from this defendant, signed and sworn to in the office of In­spector Griffin, Chief of Detectives, the trial be­fore His Honor, Judge of the Criminal Court of Shelby County, Tennessee, was a mere form.This defendant’s rights under article 6 of the Constitution of the United States were violated by the police authorities in securing this confession, in that, the defendant herein was not informed of the nature and cause of the accusation, and he was flatly, continuously and firmly refused to be allowed the assistance and advice of counsel by the said police authorities.We submit for these reasons, that this confession should have been ruled out by the Trial Court.



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We submit in the next place, and under our next assignment of error, that the Court erred in allow­ing the State, over the objection and exception of defendant, to introduce an unidentified ring alleged to have been taken from the finger of a certain Miss Ruth Mcllwain Tucker, who with her escort, one Duncan Waller, was murdered in Shelby County, Tennessee, in January, 1923; and further that the Court erred in admitting as evidence in this case against this defendant, wherein he was being tried for the murder of W. 0. Spencer, an alleged confes­sion secured in the manner and means above re­lated of the murder of Miss Tucker and Mr. Waller.As we see it, it is elementary that this testimony or the confession of the murder of these two parties is inadmissible for any purpose in this case, and that it clearly prejudiced the rights of this defend­ant when the Court erroneously allowed it to be admitted as evidence in this cause.Evidence of other crimes similar to that charged, is not relevant and admissible, unless it shows, or tends to show a particular criminal intent, which is necessary to constitute the crime charged. The crime must be a part and parcel of the same trans­action that go to make up the crime upon which the defendant is being tried.Rafferty vs. State, 91 Tenn., 655-665.Riley vs. State, 43 Tenn., p. 362.Williamson vs. State, 8 Humph., 585.These authorities establish the incompetency of



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such testimony if it is at all necessary to cite an au­thority to sustain our position in this matter.The Mcllwain and Waller murders were commit­ted in January, 1923, and the Spencer murder, for which the defendant in this cause was tried, was not committed until May 23, 1923. The State in the case at Bar goes upon the theory that the defendant killed while in the commission of a robbery.In the case of Miss Tucker and Duncan Waller, it is shown that a criminal assault was committed upon the body of Miss Tucker. It is, therefore, true that the motives were not the same in the two crimes. We submit there is no theory upon which the evidence contained in the alleged confession to the murder of Miss Tucker and Mr. Waller could be admitted as evidence in this case.In our next assignment of error, we submit that the case should be reversed and remanded upon the ground that there is no competent evidence in the record to sustain the verdict of the jury finding de­fendant guilty of murder in the first degree.I f  the confession is eliminated and is found to be inadmissible as evidence, then the case falls. Charley Barr was never connected with any of the incriminating evidence in the case that is to say, the watch or the ring or any other evidence, except through his estranged wife, with whom he had not been living for months and months, and whom he had not seen and who was not used as a witness



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by the State at the trial. The only thing we have in the possession of Charley Barr is an automatic pistol. And these pistols are a very common com­modity among our citizenship.This is all that we desire to say on this assign­ment of error.Now, in conclusion, what sort of a defendant have we in this case? What is the character;-what is the rearing; what of his standing in the community; what of his demeanor?Charley Barr is now 22 years of age. A t the time of the commission of these crimes, he was less than 21 years of age. He was born in the State of Mississippi on a plantation. When he was I 6V2 years old, when he came to the City of Memphis he. secured employment at one of the prominent hotels in the City as scrub boy. He worked at this hotel for two or three months, and then went to the Peabody Hotel as a scrub boy, and then in a month or so was promoted to the dining room as a waiter or as assistant waiter.About this time he came under the observation, evidently because of his demeanor and politeness, of Dr. J .  M. Maury, one of our most prominent physi­cians in the City of Memphis, and he was employed by Dr. Maury as his chauffeur and house boy at his home on East Parkway. Here he worked for ap­proximately two years, retaining the confidence of his employer. Dr. Maury did not dismiss the de-



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fendant when an old servant returned to him for employment, but secured employment for the de­fendant in the home of his brother-in-law, Mr. John Trenholm, a very prominent citizen of this City; Dr. Maury and Mr. Trenholm having married sis­ters, who were daughters of the late United States Senator Thomas B. Turley. Defendant worked in this home for a period of time and then he was em­ployed by Mr. V .  H. Dick, President of the Talla­hatchie Lumber Company, of this City, as his chauf­feur and house bo}n

Defendant then came under the observation, evi­dently because of his attention to duty, his reliabili­ty and honesty, of Mr. E . II. Crump, a prominent business man and former Mayor of the City of Mem­phis, as house boy and chauffeur, and general utili­ty man around the Crump home. Here he remain­ed approximately two years. This we submit is a very good good recommendation for this defendant in itself. It is in this rceord, uncontradicted, that when Mr. Crump removed for the summer vacation his entire family from the City of Memphis, he left his home in the charge of this defendant, Charley Barr, with a key to his home. This, we submit, is a very good recommendation to his honesty and in­tegrity. This defendant was working daily in the home of Mr. Crump, living in a servant’s house on the premises, driving his car, waiting on his table at the very time and upon the very days and nights upon which it is alleged that these numerous mur­ders were committed, and for the commission of



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which the police authorities of the City of Memphis have forced this defendant to confess.It is not quite reasonable that a person of this character committed the murders with which the police have charged this defendant. Murders of character, it is reasonable to presume, are not com­mitted by persons so reliable and so faithful as Charley Barr has proven himself to be to his em­ployers.From Mr. Crump’s home defendant went and was employed by Mr. C. L. Van Fossan, a prominent citizen of Memphis, who is Manager of the National Cash Register Company, where he was working when arrested. We have quoted in full the testi­mony of Mr. Van Fossan which shows the Court the esteem in which he held Charley Barr.This is the defendant who is charged with these horrible crimes.We submit that it is out of line to presume that Charley Barr murdered these people. He commit­ted neither crime.This defendant was arrested at about 1 o ’clock on the afternoon of Thursday, Ju ly  17, 1924, and taken to the police station. This was approximately a year and a half after the commission of the crime upon which he stood his trial. He was taken to Chief G riffin ’s office, was not told what he was charged with; was held incommunicado from that



time until he confessed to these murders, 59 hours later.
Mr. Van Fossan, his boss, called at the police sta­tion an hour or two after he was arrested, and was told over the telephone that they were holding Char­ley Barr for the murder of Obe Spencer. They did not tell Charley Barr that he was being held for the murder of Obe Spneeer. They talked to Barr all that afternoon, and practically all night. Mr. Van Fossan that afternoon went to the police station to see Charley Barr and was refused the courtesy by Inspector Griffin. He was told that he might see him the next morning. Mr. Van Fossan presented himself the next morning to see Barr and Inspector Griffin again refused to allow him to do so, stating that he had Barr “ almost to the breaking point.”  Mr. Van Fossan then conferred with Judge Puryear and employed him as B arr’s counsel. Judge Puryear and Mr. Van Fossan presented themselves to see Barr, Judge Puryear as his counsel. The police au­thorities were talking to Charley Barr in Chief G riffin ’s office when Judge Puryear presented him­self. Judge Puryear was told that he nor Mr. Van Fossan would under any circumstances be allowed to see Barr. A  writ of habeas corpus was sued out. Then Inspector Griffin kenw that warrants had to be sworn out for Barr then, and charges preferred. For the first time, on Friday, approximately a day and a . half after his arrest, Barr was informed of the charge upon which he was being held. The habeas corpus was heard and Barr



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was remanded. Judge Puryear was not allowed to discuss the case with his client privately and apart from the police officers. Barr was taken to the police station, and that night about 9 o ’clock was taken for a ride. He was taken over the scene of the murder, over a dark and forrested highway in Shelby County, Highland Avenue. Barr said that he was told that he had shown the officers that he did not appreciate their kindness in offering to save his life, and that the newspapers had it out already that he was the right negro, and that they were going to take him out where he killed this man on Highland Avenue and allow the mob out there to kill him. That he protested his innocence, and be­cause he refused to confess, they put the dead man’s collar around his neck and told him that they would let the mob kill him with the dead man’s collar around his neck.It is submitted to the Court that Charley Barr in making the statement above enumerated, told the truth. This is exactly what happened and is in full and complete harmony and keeping with the action of the police department in the handling of this case from the beginning.Right here, we might observe that Mr. Andrews, President of the Arrow Food Stores, Inc., for wThom Spencer was working when murdered, testi­fied in this record that the rumors had become so common about the City of Memphis of the unmerci­ful and brutal way in which the Police Department was handling this defendant, that on Sunday morn-



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ing, after the confession had appeared in the news­papers, he went to the police station to make an in­vestigation for himself. He testified that he had heard these rumors. The action of the Police De­partment in reference to this defendant was com­mon knowledge about the streets of the City.Barr testified that this collar was put about his neck; that it scared him so bad that he told the offi­cers he would tell them anything that they wanted him to say. Here the officers, we submit, were tak­ing advantage of the weakness, of the inherent and natural superstitious nature of this young 20-year old negro. The thought of being carried over the scene where a white man had been murdered in the darkness of the night, was sufficient in itself to scare him half to death. The placing of the dead man’s collar around his neck was sufficient to over­whelm him, and to scare him into any sort of sub­mission.Griffin said that he wanted to use psychology on him, to study the expression on his face. Ridicu­lous! we say. In the dead of the night, on one of the darkest highways in Shelby County, he wanted to study the expression on this negro’s face. This is an absurd absurdity. It just now so happens, we observe, that Inspector Griffin did have the dead men’s collar in his possession since the night of this murder. It was introduced in evidence. We did not know that there was in existence the dead man’s collar before entering upon the trial of this case. Of course, we submit, that they did put this collar



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around Charley B arr’s neck on that eventful Fri­day night, and they asked him if he didn’t feel the dead man choking him.Defendant was brought back to police station, talked to all night in the presence of Dr. Moody and officers, the officers working in relays. Dr. Moody testified that defendant was groggy and got more groggy, tired, sleepy and exhausted, still he was talk­ed to by the officers. He was talked to all day Sat­urday, never leaving Chief G riffin ’s office. He was held in this private office until 8 o ’clock Saturday night, Ju ly  19th, when it is alleged that he confessed orally to the killing of Obe Spencer. He did not go into the details right at this time, and right at this psychological moment, a ring was produced which the officers said had been taken from the finger of Miss Tucker, who had been murdered. Right then Charley Barr, it is alleged, confessed to the killing of Miss Tucker and Duncan Waller.Within two hours after this, Judge Clifford Davis and others were allowed to go into Chief G riffin ’s private office. Judge Davis stated that Chief Griffin said “ now let them all come in .”  A l­ready it had been done, according to Chief Griffin, and these three mysterious murders had, according to him, been solved.It is submitted just here that Miss Johnson who was present and with Mr. Spencer on the night he was murdered, testified that she did not know whether the offender was a white man or a negro,



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but she did state that the man was a tall man. This defendant is anything else but a tall man. She had an opportunity to get a good look at him, because he pushed her over from the steering wheel, got in the automobile with her, and drove it a considerable distance.It is significant in this case that the Detective Department of the City of Memphis took charge of the prisoner and kept him under their jurisdiction when he was the Sheriff’s prisoner—this crime was committed far outside the limits of the city.When warrants were sworn out, they were city warrants and void.On Friday and also on Saturday before the al­leged confession in its regular order Charley B arr’s case was called on Police Docket for preliminary hearing. Judge Puryear was present clamoring for a hearing, stating that he was ready to enter a plea of not guilty and the Court had no further jurisdic­tion.Chief Griffin had not yet forced this confession and on both days applied for a continuance. It was granted by City Judge Davis, who as City Judge, never did have any jurisdiction over this prisoner or case. This is admitted in this record and the City Warrants originally sworn out were, after the confession, torn up as void. New warrants were then sworn out before a Justice of the Peace and Barr bound over.



The Court can readily see that Charley B arr’s legal rights were ravished by the Police Department and were as nothing in its eyes. Chief Griffin and his cohorts could not allow B arr’s legal rights, Habeas Corpus writs, actions of Judges stand in his way, or obstruct him in forcing this confession.There is one other phase in this case which we desire to discuss briefly by way of argument.While the police authorities were having Charley Barr confessed that he killed each of these three per­sons, they also had him confess that he robbed the home of James P. Chase and took from it the pistol with which it is charged he killed all of these people; and also took rugs, wearing apparel, a fur coat, and large supplies of linens. That he also robbed the home of a Mr. Abraham, and that he robbed other homes in the City of Memphis. All of these rob­beries took place the latter part of 1922 before these murders were committed in January and May, 1923.Charley Barr had protested all the time to the Police Department that he had come into possession of this pistol in Ju ly , 1923, and at the same time, or about the same time Lou Ada Barr, his estranged wife, had come into possession of certain of the lin­ens, wearing apparel, etc. from the Chase home. A ll articles were purchased from some negro. The Police Department therefore, had to connect Charley Barr with the robbery of James P. Chase’s home in order to connect him with the possession of the pistol. Lou Ada Barr had told the police depart-



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ment that she had secured possession of the wearing apparel, linens, etc. from the Chase home in the summer of 1923.In order to clear all of this up, the Police De­partment, we submit, simply had Charley Barr to confess that he was not only a murderer, but that he was a highwayman, a robber, a burglar, and a house­breaker as well.This is only a side light on the case to show the extremities to which the department went in secur­ing this so-called voluntary confession from defend­ant in this cause that he murdered Obe Spencer on the night of May 23, 1923.For the reasons above enumerated and for many other reasons set out in the voluminous record, to which we have not time to allude, and for the sake of humanity, justice, fair and impartial trials in our courts of justice, this cause should be reversed and remanded for a new trial.Respectfully submitted,G R O V E R  N. M cCO RM ICK, F L O Y D  C R E A S Y ,Attorneys for Defendant.